I would think a matter could be submitted to arbitration as an "agreed
case" under Texas Rule 263, with an agreed stipulation concerning the
facts, but while there is probably nothing that would technically
preclude parties from agreeing to resort to arbitration of contested
issue it seems a very delicate subject to draft around. For example,
since a cornerstoneof Collaborative Law is the right of a party to
terminate the process at any time, without the necessity of giving any
reason, how can one be held to a binding decision on the issue
submitted, when one can terminate the entire process if not happy with
the result? Perhaps the agreement to arbitrate and be bound by the
result would have to be part of a final resolution of the whole case.
Interesting....
Norma Trusch wrote:
Arbitration has always been an interesting issue in the context of
collaborative law. If there is only one question of law that is standing in
the way of a settlement and the parties agree to abide by whatever decision
a mutually selected person makes, then I don't see any harm in each attorney
presenting a memorandum on the law on behalf of the client. On the other
hand, if the issue is a fact issue, I don't think that arbitration would be
appropriate within the context of collaborative law.
I think the parties should disclose the existence of consulting-only
experts. However, I don't see why, if the consulting expert is an attorney,
their opinions wouldn't fall under attorney-client privilege.
NLTrusch
-----Original Message-----
From: staceylangenbahn [mailto:stacey.langenbahn@xxxxxxxxxxxxx]
Sent: Thursday, August 19, 2004 9:39 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: [CollabLaw] Arbitration and withdrawal of CL counsel
Our group in Dallas is putting the finishing touches on a draft
participation agreement for non-family matters. We came up with a
question, though. If the parties want to arbitrate, do the
collaborative counsel have to withdraw because arbitration is an
adversarial proceeding? What if it is only an issue or two they want
to arbitrate? Also, how do you deal with consulting-only experts?
Does a party have to disclose the identity of a consulting-only
expert to the other parties? Can that consulting-only expert's
opinions remain confidential if the expert's work is not reviewed by
a retained expert? Thanks.
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