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Issuance of "individual practices" by the Arbitrator - What are your thoughts?

How helpful would it be for arbitrators to put together and issue to counsel upon appointment a set of "individual practices" - much like some judges do - that detail their preferences and typical practices?

Please post your thoughts/comments below.

Comments (13)

Mary Libassi:

Arbitration is a creature of agreement between the parties. The parties determine the procedure for the most part. "Individual practices" of the arbitrator are not binding unless agreed to by the parties. While such practices can be discussed at the pre-arbitration conference , I would not recommend issuing the practices in any firmal way.

Judge Gerald Harris:

I believe that practice is useful only in circumstances where much motion practice and many court appearances are to be expected, to wit, in litigation . I don't think it should be imported into arbitration where, generally, the process is less paper-weighted and appearance oriented.

I have found that an individual practice document can be useful in a big case, where there are experienced attorneys on both sides, and so it's important to have your cards on the table before arguments about procedure arise.

What I use on smaller cases is the equivalent of a "Quick Start Guide" in computer parlance - just the essentials.

Mary K Austin:

They can be helpful if they are concise don't require lots of additional work by the parties and their counsel.

Dani Schwartz:

Any arbitrator considering adopting a set of individual practices must take care that the practices don't infringe upon procedures and time-frames set forth in the arbitration provider's rules. And presumably the individual practices should be circulated along with arbitrator resumes when the parties are selecting their arbitrator(s) to ensure that the parties are making informed decisions about their selection(s).

Paul Marrow:

Arbitration is supposed to be simple and informal when compared to litigation. And arbitrators shouldn't try to take on the persona of a judge. So I would not encourage this practice. If the arbitrator has some special procedure, he or she can advise the parties when the hearing begins. And the parties can also tell the arbitrator to dispense with whatever practice is being pushed on them by the arbitrator. The arbitrator is there to serve the parties, not the other way around.

Deanne Wilson:

Individual practices developed by experienced arbitrators and designed to streamline the process are salutary and, if presented as suggestions rather than demands, should not be objectionable to counsel. One such item might be exhibits produced to arbitrators and opposing counsel in advance and indexed in three ring binders. Particularly in a large case, this eliminates the delays for everyone to search through their boxes. Saving time saves money.

andrew gerber:

Mr. Marrow is on target. My practice is to emphasize the informality of model; the kind of supercodification envisioned by the question would be exactly the opposite.

Anonymous:

What is the agenda here?

Make arbitration more than ever a miror image of litigation?

What is next? referring to arbitrators as "your honor”?.

We need to go back to the origin of the process: a private, confidential, economical and expeditious conflict resolution process managed by folks the parties trust (for their knowledge (of the process) and expertise (ability to sort through facts and to actively listen to the parties and how they articulate their respective cases).

Nothing less, nothing more.

Stephen A. Hochman:

One of the benefits of arbitration is that the parties can choose their arbitrator. Because arbitration is a creature of contract, the parties can specify the "individual practices" that their arbitrator should follow, either before or after he or she is selected. However, it would be helpful to the parties if the individual practices of potential arbitrators were distributed to the parties together with their resumes. Of course, as Dani Schwartz points out,the arbitrator is bound to follow the practices and procedures provided in the arbitration agreement, including the rules of the arbitration provider that may be incorporated in that agreement. However, a party's counsel may be faced with a boilerplate, bare bones arbitration clause that merely provides that the dispute shall be resolved "in accordance the the AAA's Commercial Arbitration Rules." Before deciding how to rank potential arbitrators, it would be helpful for counsel to know the practices of each candidate on many subjects, such as whether he or she would permit depositions in addition to testimony at a hearing, exclude irrelevant evidence, or grant remedies that exceeded those a judge could award under applicable law.

Anonymous:

It would be more helpful if it was done prior to the arbitrator’s appointment as noted by The comment by DanI Schwartz.

I agree with Mr. Marrow. I am not in favor of an arbitrator dictating procedures to parties, and I agree with others who have said we should try to make the process less like court litigation, not more like court litigation.

Robert Barras:

Paul Marrow makes the best sense regarding individual practices. I am more in
concerned with individual practices of witnesses. As a practicing architect and AAA neutral as well as a witness in numerous construction disputes, conflicting witness testimony clouds judgment. Without skilled counsel on both sides, arbitrators have difficulty getting to the truth.

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