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When one party defaults - What are your thoughts?

When one party (usually the respondent) defaults and fails to appear in the proceeding, what steps should the arbitrator and/or the administering organization take to ensure that the respondent has been properly given notice of the proceedings and an opportunity to participate and/or otherwise ensure due process?

Please provide your thoughts/comments below.

Comments (7)

If a party, usually the Respondent, is absent from the preliminary case management conference, an Arbitrator should request that Claimant provide proof of service per the rules of civil procedure for the applicable jurisdiction. And, as another layer of notice/ protection for the non responsive party, it may also be appropriate to fashion the award in such a way that it must be confirmed by a court of competent jurisdiction.

This has happened to me numerous times. The respondent has always been an unrepresented individual, probably unsophisticated and no doubt unaware of the consequences of a no-show.

I always check with the AAA case manager to make sure that they have been properly notified. This becomes obvious along the way, even before the evidentiary hearing because they have not responded to any of the communications from the AAA.

Once the notification situation has been confirmed, then I conduct the hearing without them.

David Andrew Byrne:

An arbitration award is worthless if it is unenforceable. Thus, to protect the integrity of the process and the interests of the party who does show up, I require proof of service in the same way required by a case brought in a court of law in the relevant jurisdiction.

Judge Gerald Harris:

I would add an experience I had with a respondent who was reluctant to appear because he believed he was not bound by the agreement to arbitrate and was concerned that his participation would be a waiver of that defense. I assured him that his appearance would not be usable against him and that I would first determine at the hearing the issue of whether there was jurisdiction over him.

Edwin H. Stern:

I am in total agreement with the above comments. The case managers with whom I have worked send notice of the call-in information for the first pre-arbitration conference even to defaulting respondents. I have entered orders after the first conference call, giving the respondent an opportunity to seek an opportunity to participate and conduct the conference again. Sometimes, the case manager has recommended that notice be given of a second pre-arbitration conference call. As stated above, the award is not enforceable if successfully challenged for lack of notice and proof of service and good record keeping concerning the default and failure to respond and participate is essential.

Proof of service/notice is absolutely essential to confirm/enforce the award. In addition, there is no harm in requiring an extra notice to the defaulting individual by regular mail with a certificate of mailing to insure that there is proof that notice was given. At that point, it is acceptable to assume that the defaulting individual has voluntarily absented themselves from the process, which is a necessary element for a default, and the hearing should continue.

I once had a pro se respondent default (with service proven), and then, at the ninth hour suddenly appear. Because it was a pro se situation, I allowed her appearance, especially since such an allowance did not prejudice the claimant. Had this not been a pro se situation, my ruling might have been different without exigent circumstances.

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This page contains a single entry from the blog posted on May 27, 2018 11:09 AM.

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