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The Arbitration Management Conference: A Roadmap for an Expeditious and Cost-Effective Proceeding

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The Arbitration Management Conference: A Roadmap for an Expeditious and Cost-Effective Proceeding

The goal of an arbitration management conference is to set the stage for an expeditious and cost-effective proceeding, anticipate issues or problems that might frustrate an arbitration hearing, and pave the way for a possible settlement of the dispute. Theo Cheng is an experienced advocate and arbitrator who will explain what counsel can expect from an arbitration management conference and provide practical strategies to optimize what you can realize from the event, as well as manage the costs of an arbitration, secure the discovery needed, and gather the information necessary to present your case effectively at the evidentiary hearing.

Transcript

- My name is Theo Cheng and welcome to the Arbitration Management Conference, a roadmap for an expeditious and cost effective proceeding. Today's learning objectives are fourfold. First, to understand the objectives of an arbitration management conference, also known as a preliminary hearing. Second, to become familiar with the topics that are typically covered during a management conference and to learn how to optimize securing information and documents that you need to present your case at the evidentiary hearing. Third, to engage clients in this preliminary stage of the proceeding and manage their expectations and fourth, review tips and techniques to help streamline the proceeding and deliver to your clients on the promise of arbitration as an expeditious and cost effective dispute resolution process. But first, a little about me. I have more than 20 years of experience as a commercial and intellectual property litigator. I have practiced in big law and also in startups. I'm now an independent full-time arbitrator and mediator hailing from Princeton Junction, New Jersey and I focus on commercial, intellectual property, technology, entertainment and employment disputes. I'm a member of a number of different rosters, including those of private providers like the American Arbitration Association, the CPR Institute and Resolute Systems. I'm a fellow of the College of Commercial Arbitrators and I'm a member of the National Academy of Distinguished Neutrals. I'm also a AAA Master Mediator, a past chair of the New York State Bar Association's Dispute Resolution Section and the current president of the Justice Marie L Garibaldi American Inn of Court for ADR. The overarching goal for today's presentation is to achieve efficiency in arbitration. And the key to achieving efficiency, which I define to be an expeditious and cost effective proceeding, arises from recognizing the flexibility that arbitration proceedings provide. By avoiding common errors and openly discussing time and cost concerns with the tribunal, you can help design a process that meets the party's concerns and by doing so, you will satisfy the expectations of your clients, while also ensuring fairness in the proceeding. Now, the goals of an arbitration management conference are really to manage the time and cost of the proceeding to secure information and documents that are needed for the hearing, to anticipate any issues or problems that might frustrate the hearing. And by doing all of that, you'll set down a schedule that will helpfully pave the way for a possible settlement of the dispute in case you don't get to the evidentiary hearing. Now, preparing for the arbitration management conference is an important critical step. And the first thing I would recommend doing is to review the arbitration agreement itself. This is the agreement that contains the arbitration clause and from which, not only the authority of the arbitrator is set forth but also the scope of the arbitration in total. So, for example, questions like, "What disputes can be arbitrated?" Go to what the scope of the arbitration agreement covers. What triggers are incorporated into the arbitration clause that you need to be mindful of? For example, is mediation provided for somewhere or perhaps the clause actually contains what's known as a step clause, meaning that the parties need to, for example, negotiate in good faith for some period of time before moving on to a mediation of the dispute. And if that mediation should turn into an impasse, then and only then would arbitration be available and have you met all of those preliminary steps before actually coming to an arbitration? You see arbitration clause here, part of a larger clause or a separate clause on its own and what is the impact of that? And another question is, "What are the rules and or statutes that govern these proceedings? This is not a court litigation, so when I mention rules, I'm talking about things like a institutional provider's arbitration rules, for example, or maybe the parties have decided that the federal rules of civil procedure will, nonetheless, apply or the federal rules of evidence will govern at the evidentiary hearing. And by statute, I'm talking about the background default arbitration procedural statute that will govern the proceedings. So, for example, the Federal Arbitration Act, which is found in Title IX of the United States Code or maybe it's the New York CPLR Article 75 or the Uniform or Revised Uniform Arbitration Act? All of these sources of authority will provide background rules and default procedures that you and your client ought to be familiar with before walking into the arbitration management conference. Some other questions that you want to think about are, is there a cost shifting provision in the agreement and what impact might that have on the choices that you make as you decide how to schedule this arbitration proceeding and the options that you'll consider with the tribunal? And what kind of counseling will you provide your client if there is a cost shifting provision? Have all the relevant parties been identified and properly named? And by properly named, I mean are they properly listed in the captions? Spelled correctly, punctuation correctly? Are there any other parties that should be included? And if those parties are not signatories to the actual arbitration agreement, how in the world will they be brought into the arbitration proceeding? Because if there's anything we're always told about arbitration, is that arbitration is a creature of contract. So, typically, only parties who have actually signed the arbitration agreement can be proper parties to an arbitration proceeding but there are some exceptions for non-signatories and you'll wanna investigate whether any of those doctrines, which are court made and judicially made, can apply in your situation. Does the arbitration agreement provide for some kind of appeals process? And if so, what does that look like? Is it before another arbitrator? Is it before a panel of arbitrators? What kind of timeframe does that involve and what kind of predicate or preliminary work needs to be done in order for an appeal to be processed and what time limits are on that appeal? In other words, will that appeal actually lengthen the time? Of course it would but by how much and how much more will it cost to have an appeal process included? Finally, what limits are there on the arbitrator's powers? A lot of arbitration agreements contain limitations on the remedies, for example, that the arbitrator can provide or what issues the arbitrator is permitted to look over and rule upon. It may even dictate what form of the award the arbitrator is supposed to issue. So, you wanna be cognizant of those limitations and or prescriptions that are existent in the arbitration agreement. Once you've had a chance to look at the arbitration agreement, you wanna work with your client to determine what exactly it is that you want to achieve. And here I would urge you to involve your client and agree on a set of objectives. It's really important to have the client be a part of this process and to engage with you in determining what it is you hope to get out of this arbitration proceeding. As part of that work, you'll want to, in advance of the arbitration management conference, investigate the underlying facts and gather any documents you can, from either your client or perhaps even non-parties, that support your positions as well as refute your positions 'cause that will help you better understand what flexibility you have when you discuss with the tribunal what kinds of information and documents you'll need to produce and or need to get from the other side. You might also consider trying to begin developing a theme for your case. Like every good trial attorney, you'll want to have a theme ready for the trial but an arbitration proceeding actually moves much, much faster than a typical court litigation. So, if you can develop your theme early on and even be able to portray some of that theme to your tribunal during the arbitration management conference, that's all the better for you. You'll also wanna identify potential witnesses and perhaps, you may wanna think about obtaining witness statements from them in advance or arranging for their depositions in advance. At the very least, you'll want to ascertain their availability for appearing at the hearing. You'll need to consider, with respect to third parties and non-parties, whether or not you need to obtain subpoenas and subpoena practice is particularly tricky in the arbitration context because unlike in the court context, usually, first of all, attorneys are not permitted to simply issue subpoenas on their own. And secondly, even if they are, the scope of enforceability for these subpoenas differs markedly from what's available in the court proceedings. And finally, where the witnesses are located may be really relevant, relative to where you hope to hold the hearing. For example, if they're all local, then clearly the option of holding something in person is available. If they're not local, you'll want to consider whether or not they are in a position to be able to participate remotely. Do they have the right equipment? Are they located in a place where they may have access to strong and readily available wifi connections? So, all of these things are things you wanna be able to prepare and be able to answer questions of the tribunal when they ask where the witnesses are located. You'll also want to identify, ultimately, the evidence that you need and how to obtain it because that will be a part of your conversation with the tribunal as to what discovery you'll want from the other side and what evidence you'll want to establish before you get to the hearing. I urge you also to consider thinking about what expert witnesses you may need to prove your case early on before you get to the arbitration management conference and engage them early on so they can help you refine your positions. Sometimes your client may be the best source of potential experts. Particularly in industry related arbitrations, you may find that your client is actually someone who knows potential experts in the field, can point you to the right people. You may want to consider whether experts need to be deposed in advance of testifying at the hearing. As you'll hear me say later, depositions are actually quite rare in most arbitrations, not all but most. And so, it's not always common that expert witnesses are deposed in advance but it's something you'll wanna consider. It's certainly an extra cost but it made very well help you better prepare for the ultimate hearing. What about interim or preliminary relief? If you are experiencing, for example, I do a lot of intellectual property work, so a lot of times preliminary relief in the form of injunctive relief or attachments, may be a really important issue that you'll wanna discuss with the tribunal in advance, is something you wanna look into with your client early on and be prepared to discuss with the tribunal at the arbitration management conference. And, of course, every client wants to know what the budget for the arbitration proceeding will look like, so you'll want to maintain a sufficiently itemized and clear budget, laying out for the client all the various stages of an arbitration proceeding, which largely don't differ from a court proceeding but move much faster. And depending on the choices that you make and the conversation you have with the tribunal, some of the line items may or may not be larger than others. The biggest line item, of course, is going to be the cost for the arbitrators. And the major cost really comes in at the evidentiary hearing when you're talking about eight or so hours a day, having the arbitrator or the panel sit for one day, two days, three days, even up to a week, so you'll wanna make sure that that's made clear to your client. And think through, of course, other issues that might come up at the conference. And so, as you anticipate those other issues, you can then have a conversation with your client, determine with your client what you want to achieve and make sure that aligns with your client objectives. And, of course, the conference itself is open to everyone to attend. It is after all the client's process, it's a misunderstanding amongst many attorneys that only attorneys should be attending but it's a judgment call on your part as to whether the client should attend. It might help educate the client about what an arbitration proceeding is like because they likely don't have much of an understanding other than thinking that it might be a lighter form of a court proceeding that they've probably seen on television. And also, arbitrations are very different from court proceedings, in that arbitrations place a premium on cooperation between counsel, unlike in court. And so, counsel should plan on conferring in advance to plan out issues of agreement and by doing so, you'll actually increase the likelihood that the arbitration proceeding will be more cost effective and more expeditious and not play out like a typical court proceeding. So again, I do urge you to think through the agenda items and see where you can reach agreement with your opposing counsel in advance of the actual arbitration management conference. Some arbitrators and panels actually send out an agenda in advance. Sometimes they send out lists of topics and some of them even send out draft orders and we'll talk about that in a few minutes, draft orders that contain the various provisions for the parties to consider and perhaps even modify as part of their agreement. And finally, back in the old days, of course, all preliminary hearings, arbitration management conferences took place face to face in a conference room, everyone traveled to get there. With the advent of technology, that has largely gone to the wayside and we now do them largely through conference calls and even that has changed with the advent of the pandemic and everyone's increased comfort with Zoom and other video teleconferencing technologies, now we do a lot of them over that kind of technology. So, consider whether or not one or more of these options might be appropriate for your particular case. Obviously, if you have clients that are outside of the jurisdiction that using a video teleconferencing methodology can actually be very, very cost effective, save a lot of time and actually give your clients a much better understanding of both who the tribunal members are, how they react, what their body language is like and have a better appreciation for the arbitration process in total. So, what does the agenda for an arbitration management conference look like? Well, this slide tries to give a general sense of what it looks like. There are a number of preliminary matters that happen in the beginning, including introductions because not everyone may or may not know each other when they first gather together. Certainly for council and the parties, this would be the first time they're meeting their arbitrator usually or their panel. And so, it behooves everyone to introduce themselves, begin things off on the right tone. But the arbitration panel will also be interested in making sure that the parties identify and or confirm the applicable rules and the statutes and the substantive law that might apply in the case. The panel will also want to know whether or not any preconditions to arbitration have been satisfied. By preconditions, I mean things like if there were supposed to be a negotiation step before the arbitration. Or if there was supposed to be a mediation step before the arbitration, we'll want to know whether or not those conditions have been met because if they have not been met, then, arguably, the panel or tribunal really doesn't have jurisdiction to hear the case yet until the parties have actually satisfied that precondition. The tribunal also will likely do a quick inventory of the documents that have been submitted to date and by documents, I typically refer to pleadings. So, the demand for arbitration, any answering statement, if there have been counterclaims and perhaps a reply. There may have been motions, letter motions that have been submitted in advance of the arbitration management conference. So, an inventory of those documents will be made and the tribunal also want to establish what the communication procedures or protocols are between council and tribunal. Classically, as a default, when it's an administered proceeding, usually through an institutional provider like the AAA or CPR Institute, communications were usually funneled through someone known as a case manager. And so, when the tribunal wanted to communicate to counsel, emails or communications were sent to the case manager who then transmitted it to counsel and vice versa. Nowadays, especially with so many people being so fast with email and being able to communicate it, not only text but also attachments and even FTP links. Nowadays communications usually go directly between counsel and tribunal, subject to certain requirements and guidelines. So, those are the kinds of protocols that the tribunal will wanna set and make sure everyone's on the same page about. Oftentimes, tribunals will also take this opportunity to ask council to deliver a brief case summary. In other words, how did parties get to where they are now and what claims are being brought, what relief is being sought? This is a golden opportunity for counsel to frame the pleadings, to frame the facts in the light most favorable to their client, to present to the tribunal for the first time, other than through the written work, an oral summation of what you intend to show or ultimately hope to show at the evidentiary hearing. So, don't lose that opportunity. Then, of course, we get to the heart of the arbitration management conference, which is largely scheduling and by scheduling I mean scheduling of information and document exchange, meaning how will documents be exchanged between the parties, whether or not there's going to be, for example, formal requests for production or whether or not parties will simply rely on documents that they intend to use and introduce at the hearing instead. There may be other discovery related matters that the tribunal want to ask the parties about, including about expert witnesses or the extent to which non-parties may be participating. Whether or not confidentiality orders and stipulated protective orders need to be entered. How will ESI be handled and things of that nature. The tribunal may also schedule interim status conferences along the way to keep the case on track. Particularly in today's post-pandemic world, whether you have the hearing in person or via a video teleconferencing platform. You'll want to discuss what protocols are appropriate for each of those scenarios. What I mean by that is that even if you have the hearing in person, you may want to discuss appropriate health and safety protocols, whether you're gonna have masking, whether vaccination's gonna be required, whether social distancing will be required, what size room would be appropriate, things of that nature. If you have a hearing over Zoom, for example, you'll want to know who's going to be the host, who will roll out the platform, what features, bells and whistles of the Zoom platform will be turned on or not turned on. Things of that nature will wanna be discussed either at this arbitration management conference or least highlighted so that you can discuss them at a later status conference. Finally, scheduling the pre-hearing submissions. And by that, I mean things like your final witness list, any stipulations of fact, pre-hearing briefs and, of course the hearing itself. When will the hearing take place, how many days and everyone opening up their calendars to make sure all of that gets scheduled. There are some challenging issues that can come up during an arbitration management conference. I've already talked about some of this, including setting the evidentiary hearing date and the number of days to set aside. That can depend largely on the number of anticipated witnesses that you're going to have, including experts and non-parties. And you might wanna consider some time saving measures like using written witness statements or affidavits in lieu of direct examinations. Still making the witness available for cross, of course. Thinking about how to divide the actual time between the parties. And, of course, where will the hearing be held and what format will you use. Managing the discovery process is also a very challenging aspect of the arbitration management conference. Setting deadlines that work for the parties. Whether or not depositions would be permitted or not, I touched upon that just a few minutes ago. Supervising e-discovery issues, if that becomes something that the council recognize is an important part of the discovery process. Non-party subpoenas, as I mentioned earlier, can be a very tricky part of the arbitration proceeding. Confidentiality and protective orders. Much like in court litigation, these have become much, much more popular in arbitration proceedings and you'll want to discuss them fulsomely with the tribunal. And, of course, how to handle discovery disputes, including privilege and confidentiality issues. There are some ways to manage discovery costs and these are things you want to keep in mind. For example, you might have the parties exchange only reliance documents, meaning those documents that each party intends to rely upon at the evidentiary hearing. This, of course, is in lieu of actually propounding requests and responding to them with objections and then gathering documents and producing them. Or don't permit depositions, unless for good a cause. Again, historically, arbitrations never really had depositions. It's only in recent times that depositions have become far more popular. And in certain types of arbitrations, like for example, employment depositions are largely expected but certainly in commercial cases, IP cases, depositions aren't always needed. And in fact, many, many parties have simply gone to an evidentiary hearing at least knowing who the witnesses are but not deposing them in advance. If you're going to use interrogatories, perhaps use them only to get basic factual information, eliminate contention interrogatories, for example. Use them to get, for example, the names of witnesses or the people most knowledgeable or basic factual admissions. And speaking of admissions, there have been an increased use of requests for admissions as a way to also streamline the evidentiary hearing. E-discovery restrictions are also extremely helpful. Reminding parties to require proof of necessity and looking at proportionality, much like how the federal rules look at it, is a good way to go. Sometimes to limit the use of expert witnesses, the parties may agree to a panel appointed expert. So, in other words, only one expert that the parties share, that could help reduce the costs. And, of course, encouraging good faith meet and confer before bringing any discovery related motions, that can help eliminate a lot of discovery disputes along the way. Motion practice can also be pretty challenging. Motion practice, historically, was not a large part of arbitration proceedings but in recent times, has become much more popular but there have been areas where motion practice has always been necessary. For example, arbitrability and jurisdictional motions are incredibly important to make sure that the tribunal actually has the authority necessary to conduct the proceeding. Dispositive motions, again, have become more popular, especially with the advent of motion practice in court, both in federal and state. But ask yourself whether or not granting the motion would actually eliminate any need to present certain evidence at the evidentiary hearing because if it actually doesn't and if all you're doing is simply trimming away certain claims, for example, then the tribunal is not likely to even give you the permission to file such a motion in the first instance. Because in the end, all you're doing is simply trimming some of the sides but you're really not actually changing the whole scope of the case at all. Bifurcation sometimes is appropriate. Whether it's between liability versus damages or sometimes staging or issue by issue bifurcation can be really, really effective, particularly if you're wanting to see whether or not by staging certain issues, it can lead to more productive discussions about settling the case and resolving the case in advance of the evidentiary hearing. Unfortunately, sanctions have also become much more popular in terms of motion practice but they do exist and arbitraries do have the authority to issue sanctions. Arbitraries also have the authority to issue interim relief and provisional remedies. In fact, nearly all of the institutional provider arbitration rules now contain specific provisions, allowing arbitrators to issue that kind of relief. And most institutional provider rules also contain provisions to appoint an emergency arbitrator in the case that there is some emergent issue that arises that needs immediate attention. Some other issues at the arbitration management conference that I'd like to raise at this time, include adopting international norms. I know that may sound a little bit odd when you're talking about a domestic proceeding but we've actually found that there are many, many techniques that are been used in the international space that may be very, very helpful to help control the costs and the time in domestic cases. So, for example, I mentioned reliance documents before, that actually comes out of international practice. International practice also has very limited document requests in general. And witness statements and tribunal appointed experts also are examples of types of techniques and tips that come right out of the international space. There are other procedures and ideas that you'll find in the IBA rules on the taking of evidence in international arbitration. So, I commend you to take a look at that. But, of course, adopt these techniques and tips only to the extent that they make sense to apply under the circumstances of your case. But I will note that if there are foreign parties or foreign arbitrators, there will likely be greater receptivity and acceptance of these particular norms from the international arena. You might also wanna think about whether or not you will want to amend the pleadings in some way, this sometimes comes up at the conference. And I mentioned earlier, whether or not any additional necessary or appropriate parties need to be brought in and if so, how they will be brought in and if they can even be brought in under the non-signatory exceptions. Confirmation of the applicable rules and statutes can lead to other discussions about the appropriateness of certain procedures. And again, ensuring that precondition arbitration have been met, arbitrability or jurisdictional motions. While related to that, the direct communication with the tribunal, the confidentiality and protective orders and related to that, cybersecurity or privacy protocol. So, do please be prepared to discuss any or all of the above issues as they may come up as part of the tribunal's review of the preliminary hearing materials. Sometimes it might be helpful also, to have the chair act on behalf of the entire tribunal, particularly with respect to discovery related matters so long as the other wing arbitrators are kept in the loop. Otherwise, you may experience significant delays because the tribunal first needs to get together to discuss discovery disputes but discovery disputes can largely be handled by the chair acting alone. It's a very efficient way of taking care of those disputes and helping the parties quickly move on to the next stage of the proceeding. Speaking of staging, again, bifurcation or staging can be really important. So, do consider that, it's a possibility. If you do intend on making dispositive motions, I would definitely raise that with the tribunal at the arbitration management conference, so you alert the tribunal to that possibility. The tribunal also typically requests initial and final witness lists. Initial witnesses are really just the names and identities of the witnesses you currently intend at the preliminary hearing to call at the ultimate evidentiary hearing. It's certainly not binding because things can change and information can change but it gives the tribunal a sense of who are the names of the people who are involved in this dispute. It also gives a tribunal an opportunity to conduct additional conflicts checks and make additional disclosures early on in the case, rather than waiting until they receive the final witness list. The final witness list, of course, as it sounds, is the final list of witnesses that you intend to call at the evidentiary hearing and usually, absent some good cause, you won't be allowed to change that particular list. Expert witnesses, you'll wanna have some mechanism for them to disclose their opinions. Of course, you can simply follow what's done in state and federal court and exchange expert reports, that's usually the most common way. But I have also seen affidavits being exchanged, witness statements being exchanged but in any event, some way in which the other side understands the nature and scope and subject matter of what the expert witness will be testifying to at the evidentiary hearing. In some arbitrations, there may also be a need for a site inspection. So, you'll wanna arrange for that to happen with the tribunal. And then, of course, again, non-party subpoenas. If you do need them, this is a good opportunity to discuss them with the tribunal and make sure the tribunal is put on notice that that may be coming. Interim status conferences and other deadlines will be set at the arbitration management conference. The hearing format and hearing protocols conference, as I mentioned earlier, are extremely important in today's post-pandemic world, whether you have an in-person hearing or a remote hearing. Hearing exhibits are also incredibly important. You'll wanna have a discussion about how that's going to be exchanged between the parties and with the tribunal. Many, many tribunals request that the parties work together to come up with a joint set of exhibits, as opposed to claimant only and respondent only party exhibits but again, up to the parties to work together to see what makes the most sense in their case. Some tribunals also ask for hard copy binders, some only want electronics, some want both. So, you'll want to have a discussion with the tribunal about what they need and what they want, what makes the most sense, given the facts of the case and how many exhibits you intend to have. If you're able to come up with any stipulations of fact, I think that would help streamline the proceeding and streamline the evidentiary hearing. But oftentimes, I find that that may be very difficult to do other than in very, very basic facts about the parties, for example or about the contract. And one thing I should say about hearing exhibits, many, many arbitrators and tribunals presumptively make any exhibit admissible, subject to any kind of wholesale relevance objection at the evidentiary hearing. That way, it avoids a need to lay foundations at the hearing and worry about admissibility issues at the hearing itself. So, yet another way to streamline the proceeding. You may need a stenographer or may want a stenographer in the case, to help with either post-hearing submissions or the tribunal may want a stenographer, especially in multi-day hearings in order to review the evidence more closely during the deliberations phase. If any of the witnesses do not speak English as their first language or if they're not as comfortable testifying and or understanding questions in English, you'll wanna make sure that an interpreter has been engaged well in advance so that that person is also gonna be available at the hearing. The final pre-hearing conference is usually the time when the tribunal wanna discuss with the council, final logistics and housekeeping for the hearing, including things like accommodating any witness unavailability and unavailability could be because they can't come in person to the hearing and or they have a conflict with the dates of the hearing. And it can also be a discussion with the tribunal about taking witnesses out of order because in arbitration, we're not beholden to the very rigid and formal way in which witnesses testify in court but we can take witnesses in any kind of order so long as all the evidence comes in 'cause essentially, what you're looking at is a modified form of a bench trial. Do you want opening statements and summations? In many, many circumstances, if you're doing pre-hearing briefs or post-hearing briefs, they can be in lieu of formal opening statements and summations. In fact, many, many tribunals will have post-hearing briefs submitted to them after the hearing and then may even schedule a time for everyone to get together, usually remotely, to have an oral argument, to ask any questions they may have that may have arisen outta reviewing the post-hearing briefs. Many tribunals also request copies of any relied upon authorities, either electronic or hard copy. That makes it extremely easy for the tribunal to rely on the law that you have cited in your briefs and also prevents arbitrators from doing a lot of unwanted legal research, going off the grid and looking into issues that really were not presented to them by the parties and their council. And again, I note that oral argument may be helpful after the submission of post-hearing briefs. The form of the award is also something that you'll want to bear in mind as you're talking to the tribunal at the arbitration management conference. There are three different kinds. First is a bare standard award, which basically just describes who the winner is, who the loser is and what the relief is. It doesn't provide any explanation for how the tribunal got to its end result and believe it or not, the vast majority of arbitration awards are of this type. Reasoned award is basically what you think it is. It's the tribunal giving brief explanations for how it got to its conclusions but they are and I would say they're likely in the realm of a typical court decision or court opinion that you might see on Westlaw or Lexis. Findings of fact and conclusions of law are a totally different animal altogether. This is a very, very detailed, labor intensive form of an award in which the tribunal will set forth its specific findings of fact, usually in numbered paragraphs and also specific conclusions of law in numbered paragraphs. This also requires a lot of extra work on the part of counsel and the parties to provide proposed findings of fact and proposed conclusions of law. Think of this as the decision that a trial judge would issue in response to a preliminary injunction motion, for example. So, it is very, very detailed and sometimes, depending on the circumstances, it may be called for or perhaps even the arbitration agreement actually calls for it. But do recognize, of course, that this involves more cost to the parties, both in terms of attorney time as well as arbitrator time. And so, if the parties are comfortable with having a reasoned award, that's probably a much more efficient, much more cost effective way to go. And, of course, if you don't need anything more than a bare or standard award, then by all means, choose that. The timing of when the award will be issued or rendered may be mandated by the institutional rules. For example, the AAA rules usually call for a 30 day time limit after the hearings have closed. Other rules may have different time limits, so you'll want to check into that. Maybe even the clause itself has particular requirements and a large part of this can be modified based upon the post-hearing briefing schedule because that will depend on how quickly the parties and their counsel can get a hold of the transcripts and how quickly the briefs can be prepared. And the one thing to always keep in mind about any of the things we've talked about today, is that because this is the parties' process, so long as the parties are in agreement about something, they can usually modify almost anything in the process. So, if the parties want the award to be issued sooner and they can agree to do so, then they can simply do that and ask the tribunal to bless it. And most tribunals will give their opinion about what they think about the parties' agreement but at the end of the day, again, this is the parties' process. And so, if they have agreed to do something, it really would be the better practice for the tribunal to agree and adopt what the parties have agreed to do. I'll note about the final pre-hearing conference is that a final pre-conference is largely housekeeping and administrative. I mentioned that earlier but it is extremely helpful in ensuring a smooth hearing. So, some of the more detailed things that we talk about at the final pre-hearing conference include not only the order of the testifying witnesses, which I mentioned earlier but also confirming the hearing time, the date and the location and in particular and especially in today's post-pandemic world, making sure that if there are any venue related requirements for entry and access to the building, that those are fleshed out in advance and everybody knows about them in advance and can make sure that they are satisfied. Accommodating witness availability, that's the timing and format I mentioned earlier. Whether the parties want to sequester any witnesses would largely be discussed at the final pre-hearing conference. The availability of demonstratives and how they're gonna be used, whether or not they should be disclosed in advance to the parties and if so, how early they should be disclosed. Opening statements or whether or not pre-hearing briefs are essentially in lieu of opening statements will also be discussed. Who will also be attending the hearing itself, in addition to counsel and the party representative may also be discussed. And if there are any objections to the hearing exhibits that really need to be fleshed out with the arbitration tribunal, now would be a good time at the final per-hearing conference to deal with it so you're not eating up precious time at the arbitration evidentiary hearing discussing those objections. All of this, all the topics that we've been discussing today that take place during the arbitration management conference are then usually memorialized in what's known as a case management order or a procedural order. It's very similar to a scheduling order in a court proceeding but it memorializes all the parties' agreements and all the things that the tribunal has emphasized and underscored during the preliminary hearing. And then, of course, if the tribunal had to make any rulings where the parties were in disagreement about something, then the tribunal's rulings would also be memorialized in this particular order. This first case management order is an extremely important order because it really contains the roadmap for the entire proceeding. And it usually, the internal dates that appear and when I say internal, I mean any of the dates between the day of the arbitration management conference and the evidentiary hearing can usually be changed if the parties are in agreement to do so, so long as the evidentiary hearing dates are not impacted. So, from the tribunal's perspective, the evidentiary hearing dates are really sacrosanct, those are the dates that not only have counsel, the parties potentially witnesses but certainly the tribunal have all agreed are available on their calendar and have set aside for the evidentiary hearing, the main event. And so, the tribunal will be very, very reluctant to change that date, absent some good cause shown. But any internal dates that need to be rejiggered to accommodate counsel's unavailability or scheduling or party unavailability, so long as it doesn't impact that evidentiary hearing, the tribunal usually does not care and will be largely in agreement with the parties. It's important to recognize also, in today's day and age, that you can leverage technology to design a better process. We're long past days when we're meeting in person all the time and relying solely on paper. So, consider using video teleconferencing or other teleconferencing techniques for witnesses that are located some distance away. So, simply because someone can't travel to the hearing is really not an excuse to put off the hearing but the tribunal can work with you to simply treat that witness a little differently by having the witness Zoom in, for example, or testify over the telephone or something like that. If you're gonna have depositions, consider maybe you should tape them, videotape them in advance so that you can then play those selected videotape portions at the hearing instead of having to call them at all. Videotaped witness statements are also a wonderful way in which to present a witness. In addition to submitting their written statements, I think that it might actually help enhance their credibility if the tribunal actually has the written witness statement in hand but also has a videotape of the witness that it can refer to. In today's day and age also, e-briefs are becoming more and more popular. This is where you hypertext or link materials in your pre-hearing submissions to the text of your brief itself. Therefore, the tribunal can simply click on the link to get to a particular exhibit or click on a name of case to get to a particular authority. And the brief itself, of course, is OCRd and keyword searchable so that it can be searched, certain portions can be gotten to pretty easily. Document management systems can also be helpful to organize and display exhibits at the hearing itself. So, I'm talking about things like trial support software and there are a number of third party vendors who can help with that, can lend their software and or operator expertise. And you may also consider obtaining additional hardware in the form of monitors, tablets or other equipment to supplement in the hearing room so that everyone can actually participate and view the evidence in the most favorable light to your client. It's important also in arbitration because it is so flexible to think outside of the box, so here are some ideas to think about. What if the tribunal has some role to play when a party doesn't comply with the case management order? Well, for example, I mentioned earlier that nowadays sanctioned motions are becoming more popular and certainly arbitrators do have the authority to sanction. So, think about what kind of sanctions may be appropriate? Doesn't always have to be monetary in nature. You can think about things like adverse inferences at the evidentiary hearing. Conclusion of certain pieces of evidence, whether documentary or testimonial. And in that sense, certain witnesses may be precluded but you do need to make sure that the tribunal is apprised of the authority by which it has the role to issue sanctions. And the one thing that, just bear in mind, it may seem like an obvious point is that unlike a court, an arbitration tribunal has no contempt authority. So, there's no way for an arbitration tribunal to put people in jail or imprison them for not complying with an order but there are other ways in which a tribunal can ensure that parties are complying with the provision set forth in that case management order. Settlement during an arbitration proceeding is also something that could be furthered. Again, there are many, many times during the life of an arbitration proceeding where that might be appropriate. First, is actually even before the arbitration tribunal is even empaneled at all. And in fact, if that were to be the case, oftentimes, especially with institutional providers, you may be afforded a refund of your administrative fees if the settlement occurs before the arbitrators actually take their oath. Obviously, if you've completed enough internal investigation to know your client's side of the story, as well as to identify the knowledge gaps in the other side story, that may be an opportune time to consider settlement discussions or possibly bring a mediator to conduct a mediation session. If there is a possibility of having a meaningful discussion with the other side, I would leap at that opportunity. This can happen at any time during the proceeding. It can even happen right after the preliminary hearing, once you hear a little bit more about how the other side has framed its case, what witnesses and what discovery they're seeking but be mindful that that can happen at any other time in the case. Obviously, during the information and document exchange process would be an obvious one but certainly, once it's over, once it's been completed, that might be a good opportune time to explore settlement. And in that regard, after the information and document exchange has been completed, you're now in a situation where you are now getting ready for the hearing. And again, getting ready for the hearing is really, probably, some of the most expensive time for your client and may be a good time to consider settlement. Or as the slide here says, if for some reason you've made a determination that your client shouldn't testify, whether it's because the client doesn't appear credible or if the client is going to be subject to heavy cross, that the client's not gonna be able to handle very well, this might be a good time to engage the other side in some sort of settlement discussions. Mediation and settlement discussions should occur in parallel with the arbitration process. And oftentimes, a tribunal will raise the issue of mediation and settlement. But I would say it's an open question, depending on the arbitrator or the tribunal you have as to whether or not the tribunal should actively encourage settlement during the process. What isn't up for debate, is that you should not engage your tribunal in the settlement process itself. You do not want your decision maker to be tainted by the contents of the substantive settlement discussions. You may wanna keep your tribunal up-to-date as to where you are in those discussions but certainly not apprise them of the contents of those discussions. One thing that's important to recognize also, is that to some degree, if you are looking to try and have a cost effective and expeditious arbitration proceeding, much of that can be accomplished upfront through good clause drafting. Now, of course, for most of us who serve as arbitrators, we don't have the luxury of being able to do anything about that because we're just seeing the clause at the tail end after the dispute has arisen. But to the extent that you are in a position to work with your client to draft arbitration clauses and or modify them by agreement with the other side, a lot of the savings in both time and cost can be achieved if you take a look at what's being put in that clause itself. Now, of course, if this is before the dispute has arisen, we are talking about a situation in which you're trying to anticipate what might happen, so you are limited in what you might be able to accomplish. But really depending on the type of the underlying contract itself, the amount in controversy, the nature of the potential claims, the identity of the parties and a number of other issues, a lot of the things that you can anticipate happening during an arbitration proceeding can be handled in the clause itself. So, for example, if you want to ensure that your tribunal members have certain subject matter expertise, well maybe this is the time to put that into the clause and demand certain qualifications from your tribunal members. For example, if you're in an employment case and you definitely want someone with an employment law background or who has served as an employment arbitrator over a certain period of time, maybe this is the place to put those kinds of qualifications in. I know that some institutional providers will have an administrative call with the council before the arbitration selection process in order to get a better handle on what the parties are looking for. But there's nothing like having something explicitly said in the clause itself. Also, any applicable rules, statutes or industry norms that you would like applied during the arbitration proceeding can be actually drafted right into the clause itself so that there's no mistaking what the background rules and default procedures are going to be. So, for example, if you do want a particular institutional provider's commercial arbitration rules to apply, then put those in there by name so that everyone knows that those are the default rules. If you want the Federal Arbitration Act to apply in your case or maybe you don't or maybe you want certain portions of the Revised Uniform Arbitration Act to apply, then maybe make those explicit in your arbitration clause. Your clause can also contain a number of limitations, including limitations on discovery to keep the costs down. You can put limitations on the number of hearing dates or even the time period between milestones within the arbitration process. So, for example, you may want to have a time period after which the tribunal is appointed at which point the tribunal must issue its final award. If that were the case, that puts a lot of pressure on the parties but also on the arbitration tribunal itself to fashion a case management schedule that complies with the arbitration clause the parties of all agreed to. Perhaps you may also want to insert limitations on the tribunal's authority. Maybe you want to put limitations on what remedies the tribunal can offer or what higher or lower bounds a tribunal can award at the end of the day. But again, or maybe even the other way around, you may want to make clear that the tribunal has certain types of authority issue, for example, interim or provisional remedies, for example. So, all those things may be things that are worth considering as part of drafting an arbitration clause and or discussing with your opposing counsel, even after the dispute has arisen. And again, I note, the adoption of international norms may be a good way to actually help achieve some of the cost effective and expeditiousness promises that arbitration was meant to deliver. Finally, I wanna talk about freedom and control versus managerial arbitrators. This is the difference between how much autonomy you wanna have as the council for your party, as opposed to how much authority you're going to cede to the arbitrator to manage the process for you. And so, here's some things to think about. There may be differences in the relative level of resources between the parties and you may, by noting those relative differences, you may want to have either more or less tribunal involvement. There may be a lot of unknowns that happen in the particular under the circumstances and by introducing a lot of flexibility into the process, you may actually be increasing more of those unknowns. Cost concerns, certainly by the parties, may have an impact on whether you wanna have more control or whether you wanna cede more control to the arbitrators. Whether you have an interest in delaying the proceedings versus whether you have an interest in moving the proceedings along expeditiously, that may have an impact on how much control you want the tribunal to have. And then of course, unfortunately, sometimes you may have an uncooperative client. And in that case, you may want to have, for example, a tribunal that imposes a lot more managerial control over the proceedings to help you control your client better. But the bottom line here is that if you want more part of your autonomy, freedom and control, then you should want to set more flexible deadlines in the process. Perhaps with interim status or compliance conferences scheduled, either in advance or as needed. By contrast, if you want more managerial arbitrators to flex their muscles and to help rein in costs from their perspective, then you should probably want more specific deadlines being set and with a very minimal ability to change them going forward. And I would suggest that if expeditiousness and cost effectiveness are really your ultimate goals, then the latter is the better alternative. But again, it's not always the best alternative, depending on a lot of the factors I mentioned on the previous slide. So, do consider that as you go into the arbitration management conference, whether or not you want to have more freedom, control and autonomy on your own or whether you want to cede a lot of that freedom and control and autonomy to arbitrators who are trained to bring about a cost effective and expeditious process. On this slide, I provide some reference materials that I thought might be helpful. Some of them are being provided as supplemental materials for you but I've provided at least the citations for the rest. Most of them can be found by simple Google Searching online. There are many, many other resources out there to help you find a more cost effective and expeditious process for your clients, so that you're ultimately, at the end of the day, your clients are actually getting the process that they bargained for when they entered into an arbitration agreement. Thank you so much for attending this presentation. If you have any further questions or wanna reach out to me, feel free to send me an email or drop me a line and I look forward to, hopefully, being of assistance to you.

Presenter(s)

Theo Cheng
Attorney, Arbitrator, and Mediator
ADR Office of Theo Cheng

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