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Background. My case is an enforcement judicially enforceable…

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Background. My case...

Background. My case is an enforcement judicially enforceable settlement with the provisions of CCP 664.6 My first attorney is declining with Parkinson's disease. My replacement attorney died in January of this year.

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

I am representing myself and my attorney with Parkinson's Is now a witness.

Lawyer's Assistant: Has anything been filed or reported?

We filed an unlawful detainer in August of 2016. Opposing counsel negotiated a mediation arbitration agreement with the attorney who passed away. I perceive a conflict of interest between opposing counsel and the mediator/arbitrator who are one in the same person.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We had a 6.5 mediation with no deal. The arbitration is scheduled for Nov. 1, 2017 Both, my opposing counsel and the mediator arbitrator rely upon each other for deal flow. Today, I am perceive that there is an inherent conflict of interest.

Submitted: 8 months ago.Category: Legal
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Customer reply replied 8 months ago
I have not finished with my question. This is a judicial mediation/arbitration in California involving a UD related to an earlier case settled under CCP 664.6 I agreed to terms during mediation which included leasing a house to my son's mother for 10 years. 10 years later she failed to turn over the keys and claims the mediation 10 years ago was an agreement to agree.What is the procedure for terminating a mediator/arbitrator, one in the same person. My case is in between the first mediation session (6.5 hours) on July 11, 2017, and a scheduled arbitration on November 1, 2017. My attorney died and I am in pro per. My dead attorney filed an unlawful detainer in August of 2016. Opposing counsel negotiated an agreement to mediate and arbitrate the UD and to challenge the validity of the underlying mediated settlement..As of today I perceive a conflict of interest between my opposing counsel and the mediator/arbitrator. BOTH are arguing with me regarding additional mediation session(s) at $4000/day and $3600/day respectively.In my opinion, after 6.5 hours of mediation, which did not result in a settlement, only a mediator and an attorney in collusion would argue for more of the same. The quid pro quo is deal flow. The Superior Court Judge on the case, knows me (the plaintiff) and my son's mother (the defendant) from a parentage case. The judge would scoff at the notion 5 more minutes of mediation will serve anybody any good other than the ADR vendor.1. Do I have to prove collusion? Yes____or No______2. Is my perception of collusion adequate to request replacement of arbitrator? Yes____ or No_____Yes I agreed to one person wearing both hats. Huge mistake.We are in a finite sliver of time. The arbitrator has not ruled in any capacity for or against me. In the next 24-36 hours he will be issuing a ruling on a request for continuance by opposing counsel. I have vigorously opposed a continuance and supported my objection with historical correspondence. The mediator arbitrator said I made the request to him by telephone. This is a lie. My phone bill supports my claim, indicating one incoming call from him. I have never called him in my entire life.I do not believe that I should be forced to be part of a kangaroo court with the outcome decided in advance over a deal flow cup of coffee.3. What is my first step to exercise my right to a fair and impartial arbitration? Answer:__________________ File What Form#_______________4. Is my simple request for a replacement arbitrator adequate? Yes____ or No_____If yes, I would further request an impartial arbitrator from a totally independent county somewhere in the middle of San Francisco and LA. I would recommend both parties select three cities, toss the names of arbitrators into a hat and pick a name. The objective is no deal flow history, no future deal flow, no quid pro quo. Both parties have to drive an equal distance. At the present time I am forced to drive 500 miles one way for each session.If necessary, I can show cause, where the mediator deviated/ignored the scope of the mediation which was outlined in the agreement to mediate. It took my dead lawyer 3.5 months to negotiate the scope. What did the mediator do when he was asked to follow the scope in the agreement? He tossed it aside and said "I am not going to do that".He should have been fired on the spot for this arrogance. I am in the East right now and exhausted.Speed of a response is less important that a well thought out response. It is 7:30pm in the West. Please respond sometime tonight so I can see your comments tomorrow morning (Thursday 9/28/17).Thank you.
Answered in 11 hours by:
9/28/2017
Lawyer: Bill Attorney, Lawyer replied 8 months ago
Bill Attorney
Category: Legal
Satisfied Customers: 2,458
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Dear Customer ,

Thank you for posting your legal question today in relation to your arbitration hearing.

I'm attorney Bill assisting you today. If you have agreed to arbitration by court order or contract an arbitration clause is binding on both you and the adverse party in California State.

AN agreement to arbitrate may act as an enforceable contract and arbitration agreement.

The case law supports this position.

"Mobility, LLC v. Conception,***** 1740 (2011). In cases where certain federal rights are involved and the plaintiff prefers to proceed in court, the matter will be referred to arbitration if the parties have so agreed. This will occur in many cases despite a protest that arbitration is too expensive to resolve small claims as stated See Am. Express Co. v. Italian Colors Restaurant,***** 2304 (2013"

The California Arbitration act restates the Federal arbitration act so if you have agreed to arbitration at this stage you may not be able to cancel the coming hearing.

You would need to put in a request with the arbitration council and the adverse party for atermination of the arbitration agreement, which may be difficult to compel at this stage as I indicated .

We are here to help.

Please follow up with me if you need any more information or clarification.

I get a credit when you rate positively.

You do this by rating 5****, 4**** or better.

SO I hope you rate FIVE STARS today.

Thank You

Attorney Bill

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Customer reply replied 8 months ago
Question l#2 (above) Is my perception of collusion adequate to request replacement of arbitrator (person)?I am OK with the process of arbitration. It is the person, serving as the arbitrator, which I believe is not impartial and therefore should be replaced.Question #3 Above paraphrased. What is my first step to exercise my right to have a fair and impartial arbitrator (person).Question #3 Above. What California Superior Form number do I file to request a replacement arbitrator (person)?I do not want to cancel an arbitration hearing. I only want to request a replacement of the person serving as arbitrator because I believe he is NOT impartial and is favoring my opposing counsel.What form do I file requesting the arbitrator (the person) be terminated for cause.What, in my opinion is "for cause" I have been excluded from multiple phone calls about our case.Question #1 (above) do I have to prove collusion (to replace the arbitrator)?
Lawyer: Bill Attorney, Lawyer replied 8 months ago

Thanks for following up with me on your important question.

You can request replacement of the arbitrator for lack of impartiality from the board of arbitrators.

You make a written request to the board for replacement stating the reasons and your request.

The law is as follows:

"

a) All “agreements to arbitrate” shall include the names, addresses, and telephone numbers of the parties to the dispute, the issue in dispute, and the amount in dollars or any other remedy sought.  The appropriate fee shall be paid by the board from the Contractors' License Fund.

(b)(1) The board or appointed arbitration association shall appoint an arbitrator in the following manner:  immediately after the filing of the agreement to arbitrate, the board or appointed arbitration association shall submit simultaneously to each party to the dispute, an identical list of names of persons chosen from the panel.  Each party to the dispute shall have seven days from the mailing date in which to cross off any names to which it objects, number the remaining names to indicate the order of preference, and return the list to the board or appointed arbitration association.  If a party does not return the list within the time specified, all persons named in the list are acceptable.  From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the board or appointed arbitration association shall appoint an arbitrator to serve.  If the parties fail to agree on any of the parties named, if acceptable arbitrators are unable to act, or if, for any other reason, the appointment cannot be made from the submitted lists, the board or appointed arbitration association shall have the power to make the appointment from among other members of the panel without the submission of any additional lists.  Each dispute shall be heard and determined by one arbitrator unless the board or appointed arbitration association, in its discretion, directs that a greater number of arbitrators be appointed.

(2) In all cases in which a complaint has been referred to arbitration pursuant to subdivision (b) of Section 7085 , the board or the appointed arbitration association shall have the power to appoint an arbitrator to hear the matter.

(3) The board shall adopt regulations setting minimum qualification standards for listed arbitrators based upon relevant training, experience, and performance.

(c) No person shall serve as an arbitrator in any arbitration in which that person has any financial or personal interest in the result of the arbitration.  Prior to accepting an appointment, the prospective arbitrator shall disclose any circumstances likely to prevent a prompt hearing or to create a presumption of bias.  Upon receipt of that information, the board or appointed arbitration association shall immediately replace the arbitrator or communicate the information to the parties for their comments.  Thereafter, the board or appointed arbitration association shall determine whether the arbitrator should be disqualified and shall inform the parties of its decision, which shall be conclusive.

(d) The board or appointed arbitration association may appoint another arbitrator if a vacancy occurs, or if an appointed arbitrator is unable to serve in a timely manner.

(e)(1) The board or appointed arbitration association shall provide the parties with a list of the times and dates, and locations of the hearing to be held.  The parties shall notify the arbitrator, within seven calendar days of the mailing of the list, of the times and dates convenient to each party.  If the parties fail to respond to the arbitrator within the seven-day period, the arbitrator shall fix the time, place, and location of the hearing.  An arbitrator may, at the arbitrator's sole discretion, make an inspection of the construction site which is the subject of the arbitration.  The arbitrator shall notify the parties of the time and date set for the inspection.  Any party who so desires may be present at the inspection.

(2) The board or appointed arbitration association shall fix the time, place, and location of the hearing for all cases referred to arbitration pursuant to subdivision (b) of Section 7085 .  An arbitrator may, at the arbitrator's sole discretion, make an inspection of the construction site which is the subject of the arbitration.  The arbitrator shall notify the parties of the time and date set for the inspection.  Any party who desires may be present at the inspection.

(f) Any person having a direct interest in the arbitration is entitled to attend the hearing.  The arbitrator shall otherwise have the power to require the exclusion of any witness, other than a party or other essential person, during the testimony of any other witness.  It shall be discretionary with the arbitrator to determine the propriety of the attendance of any other person."

We are here to help.

Please follow up with me if you need any more information or clarification.

I get a credit when you rate positively.

You do this by rating 5****, 4**** or better.

SO I hope you rate FIVE STARS today.

Thank You

Attorney Bill

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