LD 1218
pg. 72
Page 71 of 94 An Act To Enact the Revised Uniform Arbitration Act Page 73 of 94
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LR 468
Item 1

 
agreement on remedies for employee to only backpay and not
allowing employee in anti-discrimination claim to attempt
recovery of punitive damages or attorney's fees contributes to
determination that arbitration clause is void as
unconscionable); Due Process Protocol for Mediation and
Arbitration of Statutory Disputes Arising out of the Employment
Relationship Section C(5) (May 9, 1995) ("The arbitrator should
be empowered to award whatever relief would be available in
court under the law."); National Academy of Arbitrators,
Guidelines on Arbitration of Statutory Claims Under Employer-
Promulgated Systems Art. 4(D) (May 21, 1997) ("Remedies should
be consistent with the statute or statutes being applied, and
with the remedies a party would have received had the case been
tried in Court. These remedies may well exceed the traditional
arbitral remedies of reinstatement and back pay, and may include
witnesses' and attorneys' fees, costs, interest, punitive
damages, injunctive relief, etc.").

 
3. Section 21(c) preserves the traditional, broad right of
arbitrators to fashion remedies. See III Macneil Treatise Ch.
36; Michael Hoellering, Remedies in Arbitration, Arbitration
and the Law (1984) (annotating federal and state decisions).
Generally their authority to structure relief is defined and
circumscribed not by legal principle or precedent but by broad
concepts of equity and justice. See, e.g., David Co. v. Jim
Miller Constr., Inc., 444 N.W.2d 836, 842 (Minn. 1989); SCM
Corp. v. Fisher Park Lane Co., 40 N.Y.2d 788, 793, 358 N.E.2d
1024, 1028, 390 N.Y.S.2d 398, 402 (1976). This is why Section
21(c) allows an arbitrator to order broad relief even that
beyond the limits of courts which are circumscribed by
principles of law and equity. The language in UAA Section
12(a) [RUAA Section 23(a)] stating that "the fact that the
relief was such that it could not or would not be granted by a
court is not ground for vacating or refusing to confirm [an]
award" has been moved to this section on remedies. The purpose
of including this language in the UAA was to insure that
arbitrators have a great deal of creativity in fashioning
remedies; broad remedial discretion is a positive aspect of
arbitration. Just as in UAA Section 12(a), this language in
Section 21(c) means that arbitrators issuing remedies will not
be confined to limitations under principles of law and equity
(unless the law or the parties' agreement specifically
confines them).

 
4. Section 21(d) is based upon UAA Section 10 that allows
arbitrators, unless the agreement provides to the contrary, to
determine in the award payment of expenses, including the
arbitrator's expenses and fees. The most significant change is
that UAA Section 10 prohibits an arbitrator from awarding
attorney's fees; Section 21(b) specifically allows for an
arbitrator to make such an award.


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