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Dispositive Motions and Expedited Arbitrations - What are your thoughts?

Should dispositive motions be permitted in expedited arbitrations (e.g. consumer arbitrations) that generally provide for 1 hearing day? Are such motions necessary/useful in this context, designed to obtain a quick result?

(Consider AAA Consumer Arbitration Rule R-33 providing that the Arbitrator may allow a dispositive motion when "the moving party has shown substantial cause that the motion is likely to succeed and dispose of or narrow the issues in the case.")

What are your thoughts/comments? Please provide below.

Comments (12)

Anonymous:

I think the option should be left open but such a motion should not be granted without a high degree of justification. The party affected, of course, should have a right to respond before any decision. Due process requires that.

Edward Dreyfus:

Although the granting and denying leave to file a
dispositive motion should be left to the arbitrator, my experience is that most such requests for leave are really requesting leave to file a motion for summary judgment, when in fact genuine issues of material fact exist related to such motion. In the few cases in which the motion may be justified, I have nevertheless denied the request to file such motion because it would not add to the efficiency of the proceeding since the evidence and witness testimony would be required anyway for other more major issues. Regarding,the question applied to expedited cases, the AAA does not need a special rule on this point since the AAA arbitrators are well trained on this matter and can judge and rule on requests for such motion without further rule changes.

Michael Orfield:

The point is to keep Expedited cases short and sweet. Dispositive motions are costly in that they must follow R-33, get Arbitrator approval, then be filed and adjudicated, along with the opposition. An Arbitrator is being paid about 3 hours worth of time for the entire case, through final decision. I recommend against dispositive motions as separate matters. I also recommend tighter controls on expedited cases. They should not even get to the arbitrator unless they have agreed that they are ready for hearing in 30 days, that documents have been exchanged and all that is needed is a hearing. You can even require of that there are no dispositive motion's to be filed. The plan is to make these cases as economically feasible as possible.

Judge Gerald Harris:

I would assume that in many, if not most, of these cases the consumer appears pro se. Thus, a matter which is decided on papers alone is likely to disadvantage the unrepresented party. When coupled with the need for an expeditious and economic resolution, I believe these factors should.make dispositive motion practice in consumer related cases disfavored.

I totally agree with Michael Orfield. Expedited cases, if they are under $25,000, are submitted on documents (Rule E-6) unless a party asks for a hearing. Otherwise the hearing in larger-amounts-in-dispute cases is scheduled within 30 days of the arbitrator's appointment (E-7) and is scheduled for a single day and the arbitrator's compensation is fixed. Dispositive motions require time and attention from the arbitrator that would well exceed a document review or a single day of hearing and would delay the hearing by at least another 30 days. They would destroy everything expeditious about an expedited hearing. The whole point of an expedited hearing is it is quick (expeditious), cost sensitive and succinct. DO NOT amend the rules to allow dispositive motions in arbitrations submitted under the Expedited Procedures rules.

Judge Melvyn Wiesman:

Expedited hearings are designed for speedy, low cost resolution of disputes. The addition of hearing a prehearing dispositive motion in such a case slows the process and increases the attorneys' fee costs to the parties. Most of these cases are one day hearings. Prehearing dispositive motions in expedited hearings should not be allowed.

I agree with the previous commenters. Since one of the goals of expedited arbitrations is speed, spending some of the precious time on dispositive motions that might be frivolous doesn't help meet that goal. Let the parties make their case in the hearing - that's what they're for.

Mark J Bunim:

I agree with all the views expressed that it is antithetical to a consumer mediation to have dispositive motions because of the time that would be required and the delays that would ensue.

While the "never say 'never'" rule is a good one for arbitrators to bear in mind, I agree that dispositive motions are generally at odds with expedited proceedings, and wind up adding expense and adding time that could be saved.

Nelson Timken:

Probably the most important thing to a consumer is having someone listen to them, and being allowed to tell their story to someone who will listen, and decide their dispute. Sometimes, they just want to unburden themselves, and to vent. If you entertain a dispositive motion, you are short-circuiting that process, possibly denying them the right to be heard, if you grant the motion. You are telling them that they are at a disadvantage not being an attorney, or that the law is paramount over a compelling set of facts. It often takes the same amount of time to just listen to their argument, attentively and thoughtfully, without commenting on the merits, and then decide the matter. You will certainly create a much better impression before a pro se consumer if you do this.

David Andrew Byrne:

I treat these motions just the same as in non-expedited arbitrations. If the motion has merit and will resolve some or all of the issues, I see no reason to delay resolution.

Anonymous:

Quite simply, either party can move to dismiss claims or counterclaims, but should only do so after a one day hearing has been held - and do so without paperwork. Such a motion should only be made if the movant believes in good faith it has substantial merit. These lesser cases are for amounts up to only $25K and should be speedy and much less expensive, just as they are intended to be.

That is principally why this expedited arbitration process exists. We should not allow the process to become laden with paperwork and thus make it more expensive.That would prevent low value cases from being brought and would deny justice to at least one side.

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