Frequently Asked Questions

Each party to the dispute must sign an agreement to voluntarily provide all documents and other evidence requested by the Adjudicator — and to provide all requested witnesses under their control for examination under oath. Failure to cooperate will result in subpoenas and/or adverse inferences that can lead to a decision that is contrary to the interests of the uncooperative party. Third party witnesses and evidence will be subpoenaed as permitted by law.

Discretion will be exercised to focus on relevant evidence that could materially affect the outcome of the case. However, it is the Adjudicator’s responsibility to thoroughly investigate all of the law and all of the evidence that potentially support the legal positions of ALL parties.  At the outset of the Adjudication each party will have the opportunity to specify its claims and defenses – and to identify all of the witnesses and types of documents and other evidence the party believes the Adjudicator should review before deciding the case. The parties and the Adjudicator also may learn about additional relevant witnesses or documents as the Adjudication proceeds. CASES will arrange and oversee regular status conferences between the parties and the Adjudicator to facilitate the parties’ ability to monitor the work performed by the Adjudicator and ensure that progress is made in accordance with the written timeline provided by the Adjudicator at the outset of the Adjudication.

In many public court proceedings, the efforts to protect privileged communications between attorneys and their clients are the source of enormous cost and delay. Before subpoenaed documents can be disclosed in discovery proceedings, they must be painstakingly reviewed by counsel to determine whether they contain or describe attorney-client communications that are protected from disclosure.  When documents are withheld, there often are expensive court battles to determine whether counsel was overzealous in their designations of privileged communications and judicial review of the documents in question frequently is required to resolve those battles.  However, that cost and delay is completely avoided in a Comprehensive Adjudication proceeding. All of the requested documents are immediately provided to the Adjudicator who promptly identifies any privileged communications as inadmissible evidence.  Because the Adjudicator cannot consider privileged communications when deciding the case, they are never disclosed to any other party.

Unlike a public court case, a Comprehensive Adjudication proceeding is not automatically open to the public. Unless the parties agree otherwise, the Adjudicator will not disclose anything beyond the Adjudicator’s final decision and the evidence that is relied upon in making it. If the Adjudicator determines that evidence relied upon in the Adjudicator’s decision is legally protected from disclosure as a trade secret or personal private information, the Adjudicator will take appropriate steps to preclude disclosure of any confidential information contained in the decision and prevent any misuse of that information by the designated representatives of the opposing parties that are entitled to see it. Alternatively, if all parties agree at the outset of the Adjudication, the entire proceeding may be conducted on a confidential basis.

To avoid any potential conflicts of interest, the Adjudicator will not participate in any settlement negotiations between the parties.  However, the dispute can be resolved by settlement at any time via negotiations between the parties, or their separate counsel, with or without the assistance of a professional mediator.  Once the Adjudicator is notified that the settlement is final, the Adjudicator will cease all further work on the case and no further fees will be charged.

CASES or the Adjudicator will have the discretion to suspend all further work if the monthly fees and costs owed by any of the parties to CASES or the Adjudicator remain past due for 30 days – and to resume work on the matter once a late payment is made.  However, any party, whose share of the Adjudication fees and costs has been paid on a current basis, will have the option to restart the Adjudication process by paying the charges owed by the defaulting party.  If that occurs, the Adjudicator’s decision will require the defaulting party to repay the charges that were advanced by another party regardless of which party prevails on the underlying dispute.  The repayment obligation included in the Adjudicator’s decision may be enforced by confirming it as a court judgment under the provisions of the Federal Arbitration Act.

Once an Adjudication has commenced, it can be terminated only upon:

• the agreement of all parties,
• a settlement of the underlying dispute, or
• a default in the advance payment of monthly fees and costs owed to the Adjudicator or CASES that is not cured within 30 days of notice of default

The Adjudicator’s decision can be confirmed as a court judgment through a simple procedure under the authority of the Federal Arbitration Act.

Under the provisions of the Federal Arbitration Act, the Adjudicator’s decision may be appealed to a public court of appeals only under extremely limited circumstances. However, if the parties agree in writing before the Adjudicator decides the case, a dissatisfied party may appeal the decision to an appellate specialist appointed by CASES. After a thorough review, the appellate specialist will modify the decision only if a basis is found for doing so under the rules of appellate review applicable to trial court decisions in the public court system.