JAMS ADR Blog by Chris Poole
Following are some tips to help even the most experienced counsel take advantage of one of arbitration’s best benefit: flexibility.
1. Design the Process at the Preliminary Conference
The preliminary conference is a good time to design an effective process, agree on the hearing dates and location, set a time to submit a discovery plan and schedule dates to exchange witness lists, arbitration exhibits and prehearing briefs.
First, set hearing dates and stick to the schedule. Arbitration hearings are best held on consecutive days. It may make sense to schedule an extra day or two in case the hearings take more time than expected, since continuances can be extremely expensive.
Second, limit motion practice. Motions in limine and dispositive motions can be wasteful at arbitration, especially if there has been little discovery.
Third, consider whether the hearings should be bifurcated into liability and damages phases, for example, or otherwise set to move forward in phases.
In all of these matters, arbitrators can make the necessary rulings if counsel cannot reach agreement.
2. Limit Discovery
Discovery is the most expensive part of any arbitration, especially now that so much of it involves electronically stored information. Establish a discovery plan, being mindful that discovery should be proportional to the complexity of the dispute. Agree to limit electronic discovery in order to avoid enormous costs.
3. Limit Time for Hearings
Agree on a limited number of hearing days. The “chess clock” approach, where the parties divide time equally, is one of the best ways to avoid unnecessary costs. Time limits discipline everyone to focus on the most important documents and testimony.
4. Avoid Unnecessary Objections
Since the rules of evidence generally do not apply in arbitration, raising numerous objections is not useful. It may be important to object to hearsay in order to alert the panel to it, but that objection will only go to the weight of the evidence and will not preclude it. Save objections for important matters and avoid repeated interruptions.
5. Select Decisive Arbitrators
None of these techniques for making arbitration economical will work unless the arbitrators are experienced, decisive and willing to make necessary rulings. Good arbitrators actively manage a case.
They should be available to make discovery decisions promptly through e-mails or conference calls–not ex parte, of course–and on short notice. Arbitrators should be skilled at moving the hearings along and making rulings as needed in accordance with the rules. Active arbitrators assist in dealing effectively with cumulative evidence and avoiding gamesmanship.
Using these suggestions and working with others to streamline the process will lead to a cost-effective resolution and greater client satisfaction with the process, win or lose.