Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Arbitration Tips-N-Tools (TNT): Round 3</xTITLE>

Arbitration Tips-N-Tools (TNT): Round 3

by Amy Schmitz, Theo Cheng, George Friedman, Daniel Urbas, DeAndra Roaché, Stacie Strong
January 2021

In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about obtaining discovery in arbitration, especially in a digital world and faced with the complexities of the Covid-19 pandemic.

Round 3: What are your 3 top tips and/or tools with respect to obtaining discovery in arbitration – especially in the digital era and complexities of Covid?

Responses:

A) Theo Cheng -

  1. Be mindful that an arbitration proceeding is not court litigation, especially when it comes to discovery. Even in fields where advocates have essentially come to a consensus to provide for more robust discovery than in a typical arbitration process (such as employment law), arbitration cannot live up to its promise of being expeditious and cost-effective if discovery mechanisms from court rules are wholesale adopted into the arbitration process. Advocates should expect that exchanging documents is the primary (and often only) discovery that should take place and that devices such as interrogatories, requests for admission, and even depositions are not commonplace.
  2. The tribunal should ascertain the need for third-party discovery, along with counsel’s familiarity with the applicable law governing how arbitral subpoenas or summonses are issued. This is an often-misunderstood area of arbitration practice, and the tribunal should be in the position of providing as much assistance to the parties so that they can obtain the relevant and material evidence they need in order to present their case. To that end, providing advocates with resources, such as a form of model subpoena or summons, can help facilitate those requests. One particularly good source is the New York City Bar Association’s A Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing.
  3. As a consensual process for resolving disputes, arbitration places a premium on parties working together to resolve as many of their interlocutory disputes as possible before having to ask the tribunal to intervene. Moreover, because a tribunal is being compensated for the time it spends on the matter, involving the tribunal necessarily adds to both cost and delay in the proceeding. Thus, although a tribunal stands ready to resolve any disputes that should arise during the pendency of a matter, parties should strive to minimize discovery disputes, as they invariably increase the time and cost of the proceeding.

B) Daniel Urbas -

  1. Have parties negotiate admitted facts to reduce the scope of discovery or eliminate altogether.
  2. Limit discovery to specific issues and set time durations.
  3. Schedule only after both parties have committed to a detailed statement of claim or statement of defense (filed after the notice of arbitration and response to notice).

C) George Friedman - 

  1. No paper: In the age of COVID, let’s avoid having material produced in paper format, unless absolutely.
  2. Ensure security: Be sure discovery items produced are kept in a secure repository. This will usually be the ADR administrator’s portal. If not, be sure to use an encrypted, password-protected repository..
  3. Joint exhibits: Suggest to the parties that there be a compendium of joint exhibits do avoid duplication. I usually cover this at the preliminary hearing.

D) DeAndra Roaché - 

  1. Set/Limit the number of document exchange requests each party can request of the other party.
  2. Address how to deal with video or other physical evidence.
  3. Set timelines for production and exchange of documents.
  4. Set deadlines for Dispositive and Written motions in the scheduling order.
  5. Use a file-sharing application for parties to deposit all documentary evidence marked as the relevant exhibit and/or require exhibit binders to be sent to the arbitrator in advance.
  6. When working with a large group, have those not speaking turn off their video and all to close extra open items or programs on their computers to conserve bandwidth.

E) Stacie Strong -

  1. Be realistic and ask for the bare minimum - expansive requests are inappropriate in arbitration and seldom yield useful information
  2. Submit relatively few documents to the arbitrators - empirical evidence suggests arbitrators are unnecessarily deluged with materials, adding to cost and creating inefficiencies (see Legal Reasoning Across Commercial DIsputes (OUP 2020))
  3. Consider asking for e-materials only to minimize the need to review hard copy documents in a time when working in person is difficult

 

Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week.....

 

 

 

Biography



Professor Amy Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.  Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force.  She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.


Theo Cheng is an independent, full-time mediator and arbitrator, focusing on commercial, intellectual property, entertainment, technology, and employment disputes. He is a member of Resolute Systems’ Employment and Commercial panels of arbitrators and mediators, the Commercial and Large, Complex Case mediation and arbitration rosters of the American Arbitration Association, the Panel of Distinguished Neutrals of the CPR Institute, a FINRA arbitrator, and an arbitrator and mediator for several federal and state courts. He was also appointed to the American Intellectual Property Law Association’s List of Arbitrators and Mediators and the Silicon Valley Arbitration & Mediation Center’s List of the World’s Leading Technology Neutrals. He was inducted into the National Academy of Distinguished Neutrals in 2019.  Theo has conducted over 500 arbitrations and mediations involving commercial and business disputes, breach of contract and negligence actions, trade secret theft, employment discrimination claims, wage-and-hour disputes, and intellectual property infringement contentions. The New Jersey State Bar Association Dispute Resolution Section presented Theo with the 2020 James B. Boskey ADR Practitioner of the Year Award, and The National Law Journal named him a 2017 ADR Champion.

George Friedman

George H. Friedman is the publisher and Editor-in-Chief of the Securities Arbitration Alert, a weekly online publication covering the latest developments in financial services arbitration and mediation. He is also the principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA dispute resolution forum in particular.

He is former Executive Vice President - Dispute Resolution of the Financial Industry Regulatory Authority (“FINRA”), a position he held through January 2013. He held the same title at NASD, which consolidated with NYSE Member Regulation to form FINRA in 2007. In this capacity, he was in overall charge of FINRA's dispute resolution program, carried out by the company's four regional offices and 72 hearing locations in the United States and abroad, 200 employees, and an annual budget of $50 million. He also served as Secretary of the Securities Industry Conference on Arbitration. He has been referred to by the U.S. Court of Appeals—4th Circuit as a “leading arbitration expert.” He is a member of the American Arbitration Association's National Roster of Neutrals.

Mr. Friedman is an Adjunct Professor of Law at Fordham Law School, where he has taught a course on alternative dispute resolution since 1996. He is Chairman of the Board of Directors of Arbitration Resolution Services, Inc. of Coral Springs, Florida. Arbitration Resolution Services is an innovative online arbitration services company facilitating an affordable alternative to costly courtroom litigation and in-person arbitration for resolving Business-to-Business, Business-to-Individual, and Vehicle and Property Damage disputes. ARS is unique in that its entire process can be completed online through the company website.

In his extensive dispute resolution career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He joined NASD in 1998 as Senior Vice President of NASD's Dispute Resolution Division, and was named Executive Vice President in 2002.

Mr. Friedman received a B.A. in Political Science from Queens College, and a Juris Doctor from Rutgers Law School - Newark, where he was an editor of the Law Review. He is admitted to the New York and New Jersey Bars and the United States Supreme Court, and is a Certified Regulatory and Compliance Professional. Mr. Friedman is a member of the Securities Experts Roundtable, and of several bar associations. He is past chair of the Committee on Alternative Dispute Resolution of the New York County Lawyers Association. He is a member of the Banking Advisory Committee of Bergen (NJ) Community College.

Mr. Friedman has lectured extensively on the subject of alternative dispute resolution, and has the distinction of being one of the architects of the American Arbitration Association’s Due Process Fairness Protocols for both employment arbitration and health care dispute resolution, and assisted in creating the Consumer Due Process Protocol. He has published often, with articles appearing in the Securities Arbitration Commentator, the ABA's Dispute Resolution Magazine, the New York Law Journal, the Rutgers Law Review, and the National Law Journal. He has blogs at Arbitration Resolution Services, Inc., the Securities Arbitration Commentator, and the World Future Society, among others.


Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.

Daniel focuses exclusively on serving as an arbitrator and mediator.  As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.

A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.

Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.

He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia.  At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.

DeAndra Roaché

 

DeAndra Roaché is a professional full-time neutral specializing in arbitration, mediation, and fact-finding of various disputes such as labor, employment, financial securities, construction, consumer, and other business disputes. She conducts arbitrations and mediations via in-person and virtual/online formats. Ms. Roaché works with companies, court systems, and individuals in various industries to assist with their conflict resolution and conflict management needs. Ms. Roaché is also the Founder and President of Cynergis Dispute Resolution Services, an ADR practice that specializes in conflict resolution and conflict management services. Ms. Roaché amassed significant and progressive experience in Financial Securities, Corporate, Contract, and Labor & Employment laws while working at major global law firms in Washington, DC. She has managed numerous high-profile cases; corporate formations, dissolutions, closings: Initial Public Offerings (IPOs); and major SEC regulatory registrations for Fortune 500 companies, industry leaders, sector innovators, and business entrepreneurs. Ms. Roaché served as financial securities subject matter expert/liaison to one major firm’s Asian-Pacific offices as well as the liaison to their domestic corporate and litigation legal teams regarding financial securities matters.



Additionally, Ms. Roaché worked as a labor relations professional in the Washington, DC corporate office of “America’s Railroad”- Amtrak. She amassed extensive experience in the Labor/Collective Bargaining, Arbitration and Mediation processes unique to the railroad industry as administered under the Railway Labor Act (RLA), such as Public Law Boards, Special Boards of Adjustment, Interest Arbitrations, Presidential Emergency Boards, Grievance Mediation and proceedings through the National Railroad Adjustment Board of the National Mediation Board. Ms. Roaché serves on several arbitration and mediation panels/rosters including the AAA, FMCS, NMB, FINRA, CPR, and others.



In addition to over a decade of labor and employee relations experience, Ms. Roaché holds a Master's degree in Conflict Resolution and was trained in labor relations at Cornell University's School of Industrial and Labor Relations-ILR/Scheinman Institute. She is currently a 2020/21 NAA Arbitrator SALON Fellow with the DC/Mid-Atlantic Region of the National Academy of Arbitrators and a distinguished AAA 2015/16 Judge Higginbotham Jr. Fellow. She is also a certified Workplace Mediator & Trainer and Dispute Resolution Board certified.

 


Dr. Stacie Strong (published as S.I. Strong) is an Associate Professor specialising in private international law, international arbitration, international mediation and comparative law. Dr. Strong has taught at law schools around the world and has acted as a dual-qualified (England-US) practitioner with major international law firms in the UK and the US. She has also written over 130 award-winning books, articles and other works and has acted as an expert consultant to a variety of governmental, non-governmental and intergovernmental organisations. In addition to teaching at the University of Sydney, Dr. Strong acts as an arbitrator, mediator and expert in commercial, IP and trust-related matters in both the domestic and international spheres.