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Projected Tribunal Billing - What are your thoughts?

Should the Tribunal confer with each other on projected hours/billing and expenses or deal independently with the clients/institutions? If there are large discrepancies among the Tribunal regarding projections, should the Tribunal address this or leave to the clients/institutions?

Please provide your thoughts/comments below.

Comments (8)

In every case I've been involved in, the AAA asks beforehand for my estimate of hours. My resume on file has the hourly/daily rate, so there should be no mystery to the parties about what fees to expect from the arbitrator(s).


My practice is to confer with my Panel colleagues to develop a sense of time that will be spent on various elements of the arbitration: discovery motions, dispositive motions, hearing time (as requested by the parties), record review, case review, arbitration pre- and post-hearing brief review),and preparation of the Award. There should not be great discrepancy in the hours of the Panel, with, of course, the Chair projecting more time. It there are large discrepancies, the Tribunal should first attempt to adjust. (I would like to hear thoughts on how the Institution can assist in the case of large discrepancies.) Caveat: in the case of party-appointed arbitrators, it is acceptable for that arbitrator to address projected hours with the party who appointed her.
Judith Meyer

Judge Gerald Harris:

Conferring about projected billing is, in my view, both necessary and appropriate.For one, it is likely to result in a more accurate estimate and it will avoid wildly disparate projections which would make billing problematic.


I have never felt good about discussing billing with my tribunal. I trust myself to bill honestly and honorably and I don’t want to feel pressure to conform to the billing practices of others, regardless of whether the result is less or more favorable to me.

This is an excellent question that should be further explored not only here, but in panel presentation forums.

I have been on both sides--where the Tribunal did confer with one another about hours/expenses and where they did not. It works much better where the Tribunal has an open and frank discussion with one another about hours. The presentation of billable hours to the clients should reflect fairness and reasonableness.The understanding is that the Chair will certainly have more hours than the wings, because of the Chair's extra duties and responsibilities in drafting orders, dealing with discovery disputes and especially where there is motion practice. The wings' hours should be more or less equal, with perhaps some minor variation. When there is a huge disparity between the wings' hours this can cause problems , especially for the case administrator. Thus, it is much better for the Tribunal to vet the issue before bills are submitted to avoid problems down the road.A good Chair will address this with the wings at the inception of the arbitration and take charge of coordinating these discussions on a regular basis during the process.

Michael Orfield:

By ‘tribunal’ are we referring to a 3 Arbitrator panel? In those situations in my experience each Arbitrator has sent in their own estimate. There are, of course, differences in billing rates, but large discrepancies probably have more to do with differences in workload projections. In that case, the chair might be wise to have a phone conference and discuss, for example why Arbitrator 1 thinks 5 hours will be needed pre Evidentiary hearing, and Arbitrator 2 thinks 25 will be necessary. AAA does an excellent job at assuring enough up front funds to cover the matter. Too little or two much might have a lot to do with how the members of the panel see this particular arbitration playing out.

Edwin H. Stern:

Although I see no downside to talking with the other Panel members about estimated times to be spent on an arbitration, I have no hesitation to estimate my own time myself if asked at the outset.
However, I always endeavor to communicate with the other Panel members before submitting a bill for services rendered.
Of course, the chair of the panel or third neutral selected by the other two usually spends more time drafting orders, opinions and communicating with the parties, and each neutral spends a different amount of time reviewing the record and cited opinions, and doing research, but there are subjects or proceedings which they handle in common, such as the hearing and conferences. I try to keep accurate records as I proceed in the matter, but there can be occasions where the recording of time omits something or is erroneously recorded for some reason or another, and if the time of the chair selected by the two others is to be paid 50-50 by each party, it can be embarrassing if the party paying his or her selected neutral and half of the third neutral’s bill upon presentation receives different time records for the same event, hearing or conference, it can be very embarrassing. As a result, while such mistakes rarely if ever happened, I always try to communicate with the other neutrals on a panel to make sure that if there is a difference in the time recorded for the same event, we can try to determine why and endeavor to correct it.

William Pastor:

My answer refers to the situation where there are three neutrals, none of whom is party-appointed.

I believe such discussion among the panel members is useful in terms of generating a fair and reasonable time and cost estimate. It could be that one of the members has not thought through an aspect of the upcoming work sufficiently, and therefore has estimated poorly.

For example, an arbitrator could easily underestimate the time needed to write a reasoned award if he or she has never done so, or if the facts and applicable law present many more subtleties than is apparent at first. On the other side, estimates for deliberation time could be unnecessarily high in a case that is likely to be very straightforward.

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