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Note from the Issue Editor: Richard D. Williamson, Esq.

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N EV A D A L A W Y ER
NOVEMBER 2009
LET TER TO THE EDITOR
In “Compelling Arbitration? Not So Compelling In Nevada,” the authors note the various benefits of binding arbitration, including that it is ordinarily more expeditious, economical and equitable than jurytried cases. However, as the authors also point out, when motions to compel arbitration are denied, it may take months or years before the Supreme Court determines their ultimate fate. Thus, the benefits of arbitration may not be so compelling after all. Fair enough. However, rather than simply accepting the status quo, we should instead attack the delay problem at its core: erroneous orders denying motions to compel arbitration. As trial counsel, we need to effectively educate the district courts that motions compelling arbitration must be granted unless the opposing party clearly demonstrates there was no binding arbitration agreement in the first place. NRS 38.221(1)(b). A good starting point is the Supreme Court’s holding in Kindred v. Dist. Ct., 116 Nev. 405, 996 P.2d 903, 907 (2000), in which the court held that “we resolve all doubts concerning the arbitrability of the subject matter of a dispute in favor of arbitration.” The purpose of the UAA is “to prevent courts from intervening when a provision for arbitration has been contractually provided by the parties,” arbitration clauses “are to be construed liberally in favor of arbitration,” and that “Nevada overwhelming favors arbitration.” Similar language abounds in the case reports. See, e.g., Clark County Public Employees Ass’n v. Pearson, 106 Nev. 587, 798 P.2d 136, 138 (1990); Philips v. Parker, 106 Nev. 415, 794 P.2d 716, 718 (1990); International Assoc. of Firefighters, etc. v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478, 480-82 (1988). Second, in light of “overwhelming Nevada policy,” appeals of arbitration denial orders should be given priority. In California – at least at the trial level – arbitration motions are given priority over virtually all other matters. California Code of Civil Procedure § 1291.2 (arbitration “proceedings shall be quickly heard and determined”). We should consider similar legislation in Nevada by which arbitration-related appeals would be determined on a priority basis by the Supreme Court. Finally, a statute awarding attorneys fees and costs for successfully reversing arbitration denial orders should also be part of this legislation wish list. Although costs and attorneys fees are awardable for motions to confirm, vacate and the like (NRS 38.243), no such similar statute applies to appeals of orders denying arbitration. (cf., NRAP 39). A statute providing for such relief would go a long way toward easing the pain associated with protracted appeals of orders denying arbitration, and might even encourage the prompt resolution of many of those appeals. By employing these and other, potential alternatives, arbitration can provide a very compelling alternative to the court system.
FROM THE ISSUE EDITOR:
BY RICHARD D. WILLIAMSON
This month’s issue of Nevada Lawyer provides a great deal of fascinating content. As we do every November, in honor or Veterans’ Day, we are proud to recognize and thank the hundreds of bar members who are retired, reserve or active duty members of the armed forces. As a segue between this show of appreciation and the issue’s substantive theme of employment and labor law, Captain Charles G. Kels of the United States Air Force highlights some of the legislation and cooperative agreements which allow military medical providers to work with civilian medical institutions while they are not actively deployed. In furtherance of our substantive theme, this issue offers several articles which will educate and assist both experienced practitioners and attorneys new to the area of labor and employment law. Jill Garcia reevaluates individual liability under the Fair Labor Standards Act. Andrew L. Rempfer and David B. Dornak analyze the U.S. Supreme Court’s revised standards for evaluating certain discrimination claims. Carol Davis Zucker and Edwin A. Keller provide some practical tips on conducting harassment investigations in the workplace. Bruce Willoughby analyzes the effect of the Supreme Court’s Ricci v. Destefano decision. Lastly, Neal A. Klegerman confronts the ways in which the sale of a business can have unforeseen implications on non-competition agreements. I hope that all of our readers find these features, along with all of our diverse content, interesting, informative and helpful.
A WORD
Kenneth R. Zuetel, Jr.
Kenneth R. Zuetel, Jr. is a member of the California and Nevada state bars, and represents physicians and attorneys against claims of professional liability. krzuetel@ztlaw.net.
RiCHarD D. WiLLiamSOn is an attorney with the law firm of Robertson & Benevento. His practice primarily focuses on real estate law and commercial litigation.
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