September 1, 2015

HOW COUNSEL CAN PREPARE THE INSURANCE CLAIMS REPRESENTATIVE FOR MEDIATION

See the attached article by Mark J. Bunim, an arbitrator and mediator in New York City and a member of the panels of AAA and NAM. He can be reached at bunim@caseclosure.com.

Bunim Def Counsel Prep Insurance Rep.pdf

Ethical Dilemmas - What are your thoughts?

What challenging ethical dilemmas have you encountered in an arbitration or mediation as an arbitrator/mediator or advocate? Please post your comments below.

August 31, 2015

WHEN AND HOW TO USE MEDIATION TO YOUR ADVANTAGE

See the attached article by Section Member Stephen A. Hochman, Esq.

When and How to Use Mediation to Your Aadvantage.pdf

August 28, 2015

Saving Time & Money in Arbitration: Tips for Advocates

By Jeffrey T. Zaino

Saving time and saving money continue to be important reasons why attorneys and their clients use arbitration. However, when it comes to realizing these savings, users of the arbitration process often see the arbitrator as the sole agent responsible for delivering economy and efficiency. The arbitrator's role in this regard, while important, is only part of the picture. There are many things party advocates can do to assist the arbitrator in delivering an economical and efficient process for their clients.

The starting point is the advocate's mindset. It is important that attorneys approach the process with an "arbitration mindset" rather than a "litigation mindset." Challenging the "litigation mindset" is not easy, but here are a few things attorneys can do that will help.

These include:

1. Proactively collaborate with arbitrators to promote process choices that lead to efficient and economical arbitration proceedings.

2. Ask the arbitrator to intercede whenever proposed changes to rules or procedures threaten the efficiency and economy of an arbitration proceeding.

3. Do not rely on litigation procedures to form a framework for arbitration but rather capitalize on arbitration's flexibility to bypass such procedures and ensure an efficient and economical proceeding for their clients.

4. Actively seek the arbitrator's guidance regarding their case presentations for ways to make the process more efficient and economical when compared to litigation.


Closely associated with challenging the "litigation mindset" is a need to move away from reliance on extensive (and expensive) discovery. There is no statutory or common law right to discovery in arbitration. Therefore, there are several things arbitration advocates should do to minimize discovery to the greatest extent possible.

These things include (but are not limited to) the following:

1. Vigorously adhere to the principle of limited discovery in arbitration.

2. Intentionally encourage/require client participation in discovery discussions.
3. Passionately pursue what your client needs, not everything you may want.

4. Diligently avoid interrogatories and requests for admissions.

5. Earnestly follow the notion that witnesses should only testify once, and that is at the evidentiary hearing.

6. Conscientiously avoid fishing expeditions.

Next up in the effort to save time and money in arbitration is considering whether motion practice is a help or hindrance. The prevailing view of motion practice in arbitration is that motions likely to expedite or facilitate the proceedings are acceptable. Motions likely to be unproductive are strongly discouraged.

When it comes to motion practice, advocates should consider the following:

1. Arbitrators have the authority to consider any form of motion-including issues of arbitrability--and to grant any from of relief, subject to limitations imposed by the parties' arbitration agreement, applicable rules, or law.

2. Arbitrators have authority to consider any type of motion and have the discretion to grant any form of relief that the arbitrators deem just and equitable and within the scope of the agreement of the parties.

3. Advise the arbitrator of your intentions regarding motions--imminent and prospective--as early as possible.

4. Seek the arbitrator's permission before presenting motions.

5. Be very selective when contemplating filing motions. Generally, file only motions likely to promote efficiency and economy.

6. Refrain from filing motions likely to be unproductive.


Let's look at a number of specific motions to gain a little more insight into their efficacy in the context of arbitration.

Bifurcation

AAA rules [Commercial R-32(b), Construction 32(b), Employment 30] explicitly give arbitrators the authority to bifurcate arbitration proceedings. Arbitrators will typically only allow bifurcation after deliberate forethought and discretion.

When weighing whether to file a motion for bifurcation, it is important for an attorney to understand that arbitrators may consider some of the following factors in determining if it should be granted:

• Whether substantive issues in the arbitration are significantly different from each other or significantly complex to justify bifurcation.

• The amount and type of evidence needed to support each issue.

• Whether the evidence necessary for a later phase will overlap or will be mutually exclusive.

• Whether the evidence necessary for a later phase of the hearing will be prejudicial or inflammatory.

• Whether evidence necessary for a later phase of a hearing is sensitive.

• Whether resources will be conserved by bifurcation or would increase costs with multiple phases.

• Whether a second phase of the arbitration will be voluminous.

• The effect that bifurcation may have on discovery (if allowed).

Postponements

Postponements are the primary cause of delay in commercial arbitration cases and the chief frustration of arbitrators and parties. Prior to filing a postponement request a party should first contact the other party (or parties) involved to see if
they have any objection to the request. Generally, arbitrators will strongly discourage requests for postponements and will only consider them when good cause is shown. It is up to the arbitrator's discretion to determine what constitutes "good cause." If granting a postponement, arbitrators will generally reschedule the hearing for the earliest possible date.

Factors considered by arbitrators when weighing whether to grant or deny a request to postpone a hearing include, but are not limited to:

• The reasonableness of the request, i.e. are the supporting reasons sound?

• The comments of the other party or parties opposing the request.

• Whether granting or denying the request will be prejudicial to any party.

• The number of prior postponements, whether mutual or unilaterally requested.


Arbitrators must also consider whether denying a postponement request could be interpreted as "misconduct" sufficient to warrant vacatur of the final award as provided for in Section 10 of the Federal Arbitration Act (FAA), i.e. "Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown..." The Uniform Arbitration Act and many state arbitration statutes contain a similar provision.

Limiting Testimony

AAA rules [Commercial R-34(b), Construction 33(b), Employment 30] provide that arbitrators have the authority to determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant. If a party's advocate cannot demonstrate that such testimony would be unfairly prejudicial, such requests to limit testimony on the basis of prejudice will generally be denied by the arbitrator. Section 10(a) of the FAA provides that refusing to hear evidence "pertinent and material to the controversy" is a ground for vacating the award.

Efficient and economical ways of presenting expert testimony in arbitration include:

• Have expert witnesses meet before the hearing to prepare a list of those points on which they do and do not agree so they can focus on points in dispute.

• Having both experts available for simultaneous questioning. This can greatly enhance the arbitrator's ability to understand, analyze and make decisions.

• It may be possible to conduct the joint examination of the experts after the arbitrator has received the experts' reports and before any other testimony is taken.

Asserting a Counterclaim

Under all of the AAA's arbitration rules, no new or different claim or counterclaim may be submitted without the consent of the arbitrator after the arbitrator is appointed.

Party advocates need to be aware that factors considered by arbitrators when deciding whether to allow new or different claims or counterclaims include, but are not limited to:

• Will allowing the claim/counterclaim be prejudicial to the other party?

• Will NOT allowing the claim/counterclaim be prejudicial to the requesting party?

• Will allowing the claim/counterclaim promote judicial economy and fairness?

• Is the request substantive or put forth for the purposes of delay, etc.?


To avoid this situation, the parties and the arbitrators should consider including--as part of the Preliminary Hearing Scheduling Order--that the parties submit terms of reference, i.e. a statement of the issues that the parties feel the arbitrator must decide.

Sanctions

Arbitrators may impose sanctions if empowered to do so by the parties' arbitration agreement, applicable arbitration law, or applicable governing administrative rules. Absent such empowering authority arbitrators are reluctant to impose sanctions. The Revised Uniform Arbitration Act §17(d), 21(b), (c) give arbitrators the authority to grant broad relief including an award imposing sanctions for noncompliance with discovery orders. In any given case, counsel should brief the arbitrator on his or her authority to impose sanctions. Arbitrators are likely to shy away from imposing evidentiary sanctions, such as precluding the admission of certain evidence or testimony, because the Federal Arbitration Act (and applicable state arbitration statutes) provides that failure to hear material and relevant evidence can constitute a basis for vacating an award. 9 U.S. C. §10(a)(3). The AAA's Commercial Rules (amended 10/1/13) added a new section (R-58) giving arbitrators the authority to order appropriate sanctions, upon a party's request, where a party fails to comply with its obligations under the rules or with an order of the arbitrator.

While all the forgoing items do not represent the entire universe of things attorney advocates can do to help ensure arbitration is an efficient and economical process for their clients, each is an important and effective step in the right direction.

August 27, 2015

Birbrower was right: Foreign attorneys are entitled to appear in international commercial arbitrations held in California

Article appearing in the Dispute Resolution Journal, please see the attached.

DRJ - Jarvis.pdf

August 25, 2015

SAVE THE DATES: October 7-10, 2015, Association for Conflict Resolution, 2015 Annual Conference

Section member Lisa Renee Pomerantz will be presenting a program at the Conference entitled: What's a Neutral to Do?: Dealing with Ethical Issues Faced by Party Representatives in Commercial ADR.

For more information on the Conference or to register, go to the following link: http://reno.acrnet.org/.

GUIDANCE NOTE: ARBITRATION AND SOCIAL MEDIA

See the attached guidelines on social media. This was prepared by the Social Media Guidance Note Committee:

Thomas D. Halket, Chair
Stephen P. Gilbert
Herbert H. (Hal) Gray, III
Larry D. Harris
Robert A. Holtzman
William H. Lemons
Peter L. Michaelson
Edna Sussman
Irene C. Warshauer
John H. Wilkinson

Social-Media-Guidance-Note-Final062015.pdf

August 24, 2015

Your Longest Arbitration Case - What are your thoughts?

Either as an advocate or arbitrator, what has been your longest arbitration case? Why did it take so long? Please post your comments/thoughts below.

August 23, 2015

"IT'S NOT OVER 'TIL IT'S OVER": AFTER THE ARBITRATION AWARD IN SPORTS

Appearing in the Dispute Resolution Journal, by Jay E. Grenig and Rocco M. Scanza

DRJ - Grenig and Scanza.pdf

August 22, 2015

SDNY: FAA does not Allow a "Second Bite at the Apple" Arbitration of a Confirmed Arbitration Award

Posted by Securities Arbitration Alert in Arbitration, Court Decisions, News, Securities Arbitration on August 20, 2015.

http://www.sacarbitration.com/blog/sdny-faa-not-allow-second-bite-apple-arbitration-confirmed-arbitration-award/