A Look Back at AAA Initiatives and Efforts in 2013
By Jeffrey T. Zaino, Esq., - Vice President, Commercial Division
2013 was an exciting and productive year for the American Arbitration Association (AAA). India Johnson became the first female president and under her leadership the AAA implemented eight initiatives that enhance the alternative dispute resolution (ADR) community and process. This article looks back at 2013 and summarizes those important initiatives and efforts.
In an effort to make it easier to draft sound arbitration and mediation clauses, the AAA launched an online tool called Clause Builder. This free online tool can be accessed through the AAA's website at www.adr.org and allows for downloading and/or cutting and pasting the clause you draft. Clause Builder walks you through the drafting process so that no important provisions of a sound ADR clause are inadvertently excluded. For example, it contains automatic prompts for types of claims to be arbitrated, scope of discovery, amount of arbitrators, arbitrator selection process, applicable law, and other key considerations.
Administrative Review Council
The Administrative Review Council (ARC) was formed in 2013 to act as an administrative decision making authority for the AAA to resolve certain issues arising on large, complex domestic cases. ARC ensures that case issues are carefully reviewed and resolved at a high level by individuals at the AAA with significant arbitration experience. These individuals serve on a rotating basis and include AAA executives and/or external members such as retired AAA executives. The primary issues before ARC are objections to the neutral, locale disputes, and filing requirement challenges. ARC meets once a week and has the ability to convene an emergency meeting within 24 hours at the request of a party. ARC ruled on approximately 170 disputes in 2013.
Initial Discovery Protocols for Employment Arbitration Cases
With the goal of making the employment arbitration discovery process far more cost effective and efficient, the AAA formed a working group of employment arbitrators and advocates in 2012 to draft protocols based on the discovery protocols being utilized in federal courts nationwide for some employment cases. The Initial Discovery Protocols for Employment Arbitration Cases (Protocols) were drafted and a pilot program commenced in 2013 on large, complex employment arbitration cases in New York. The highlights of the Protocols include:
• Limitation on production to 3 year time period before date of controversy
• Certification of accuracy by counsel or party
• Organization and labeling documents and electronically stored information
• 30 day time limitation on responses
• List of required production by both Claimants and Respondents
New Optional Appellate Arbitration Rules
On November 1, 2013, the AAA introduced new Optional Appellate Arbitration Rules for parties that desire a more comprehensive appeal of an arbitration award within the arbitral process than what exists statutorily. The rules now provide parties with an option of a streamlined and standardized appellate arbitration process. The process can be completed within three months, giving both sides adequate time to submit appellate briefs. The rules permit review of errors of law that are material and prejudicial, and determinations of fact that are clearly erroneous.
In the summer of 2013 the AAA launched ADRCommunity, the first network enabling an entire community of people using or interested in arbitration and mediation to communicate with each other. Anyone interested in ADR is welcome to join this unique network which gives users the ability to find all types of information related to ADR in one central location and access to other people with shared experiences, questions, interests, and recommendations. The network site is located at: https://community.adr.org/welcome.
Updated/Amended AAA Commercial Rules
Following years of listening, studying, and testing, the AAA made a number of significant changes to the AAA Commercial Arbitration Rules . The rules, that went into effect on October 1, 2013, provide a greater definition of process and authority. The following is a summary of some key changes:
• Mediation - There is now a mediation step for cases where a claim or counterclaim exceeds $75,000. However, a party can opt out.
• Preliminary Hearing - The new preliminary hearing rule provides greater discretion for the arbitrator to conduct preliminary hearings and includes detailed procedures and a preliminary hearing checklist.
• Dispositive Motions - This rule provides for the filing of dispositive motions.
• Emergency Measures of Protection - Parties can now apply for emergency interim relief before an arbitrator who will be appointed within 24 hours of receipt by AAA of the emergency relief request. The previous rule was optional and had to be agreed to by both parties.
• Disclosure - The parties and their representatives are now required to make disclosures about possible conflicts regarding the arbitrator.
• Sanctions - Sanctions are now available for abusive or objectionable behavior.
• Majority Decision - In the interest of an efficient discovery process and absent an objection by a party, the decision-making authority lies with the panel chair to resolve disputes related to the exchange of information or procedural matters.
The AAA launched Mediation.org in 2013, a comprehensive online resource for all aspects of mediation, built by mediators for mediators and those who need them. Mediation.org is a community of colleagues for mediators, their club, their library, and their forum. Mediators can make their resumes available online, get access to tools of the trade, find trade and academic organizations for continuing education and/or membership, and publish their original articles, and much more.
Online Arbitrator Search Tool
The AAA now offers an online arbitrator search tool. This search tool can be used before the AAA issues a standard list of 10 or 15 arbitrators and allows for much greater access to the AAA panel. The objective is to provide a greater selection of arbitrators and keep the case moving by reducing arbitrator selection time (no striking and ranking of lists). Also, if the parties work together using the online tool, they control the selection process and can immediately advise of disclosures.
Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.