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Delay Tactics - What are your thoughts?

All parties to arbitration can be guilty of instigating delay tactics at various stages of the arbitral proceedings. Such can add cost and veer the proceedings off track. What tactics have you seen? How can the Tribunal/Opposing Counsel minimize or circumvent such tactics?

Please provide your thoughts/comments below.

Comments (8)

Failing to call in for scheduled status conferences or telephonic hearings, untimely responses to permitted discovery requests, missing deadlines for mandatory disclosures, and last minute motions for continuance are all in my personal history. The Tribunal should use its powers under the forum rules to ensure an efficient process, while being mindful that generally a postponement for good cause must be granted. Opposing counsel must bring difficulties to the Tribunal's attention sooner than later.

Richard A Lavely:

The very first arbitration I did over a decade ago, the lead arbitrator set out a schedule for everything. Discovery, motions, and even hearing. I still think that is the best way. In the ones I have done where it is taken step by step, yes, there are always postponements. I'm open to either approach, but frankly the latter sure does result in a lot of last minute cancellations.

Judge William G. Bassler:

I have to say that in the ten years of arbitrating since I left the federal bench I have not experienced delay tactics. As Chair I have a very detailed proposed agenda which I give counsel several weeks to work on and most everything is agreed upon before the Preliminary Conference.
Where there are differences, the Panel resolves the dates, and we move on as scheduled.

If the parties know that the evidentiary hearing will not be postponed other than by mutual agreement or extraordinary circumstances, the ability to delay is significantly curtailed.

Richard Lavely has it right. If you can get the parties to agree on a schedule before the first event even happens, that sets the tone, and makes it easier for the arbitrator(s) to jawbone parties if they want to postpone an event.

The worst case I've seen is where the party calling for the arbitration didn't even show up at the hearing, or let the others know that he wasn't going to be there ("I had something come up"). My reaction was to state, "If this wasn't important to you, then why are we here?"

Judge Gerald Harris:

The most common device to delay an arbitration, in my experience, is protracted discovery demands and untimely responses to appropriate discovery requests. The most effective remedy is for the arbitrator to establish clear guidelines early on , make prompt and decisive rulings on discovery disputes and generally provide vigilant oversight.

During the Preliminary Hearing the Panel should make it crystal clear to the parties that the Hearing date is set in stone, absent some very unusual circumstance or illness. Discovery motions are a big cause of delay. It is helpful if discovery motions are limited to a very short letter or email
(three pages maximum) and ruled upon by the Panel in a matter of a day or two.

When a party fails to pay the fees or charges of the arbitrator or the administrator, the delay is often caused by the arbitrator or administrator declining to proceed until payment is made. Under appropriate circumstances, I have recommended that my client "advance" the other side's share. The problem in advancing money is that the ultimate award may not be collectible.

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This page contains a single entry from the blog posted on April 18, 2017 9:49 AM.

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