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Arbitration Trends - What are your thoughts?

What trends do you see on the horizon in the arbitration marketplace and what steps can counsel (in-house and outside), arbitrators, and providers undertake to best prepare for them?

Please provide your thoughts/comments below.

Comments (8)

A move beyond the multi-door courthouse to the multi-door arbitral forum. Rules such as single arbitrator for procedure, three member panel for merits and fixed fees (flat rate) will proliferate. Users (counsel and parties) will need to pay attention so they know the choices and pick the one best for them.

Separately, after Epic Systems, the cost of individualized arbitrations compliant with the due process protocol will become an increasing concern.

Jose W Cartagena:

Arbitration is too much in the hands of lawyers who, because that is their training, cloud the process in legal obscurity, making arbitration too much like litigation. Arbitration and court litigation are parallel processes and care must be taken to keep them that way. De-legalize arbitration, make it understandable to the layman, and make it make sense to him. Make arbitration a quick, effective process, and let everybody tell their story to the arbitrator in their own terms.

James Bowdish:

At least 5 or more years ago,the AAA President, speaking at one of the national meetings of Arbitrators & Mediators which I was attending, scolded the Arbitrators for allowing arbitrations to become nearly as costly and time-consuming as litigation. He was suggesting that corporate counsel, who brought their complaints to his attention, would not write arbitration clauses in contracts if the trend continued. We all obeyed, and all AAA seminars and webinars included emphasis on solving this problem. Now it seems as if we have regressed with more rules, complicated e-discovery, more depositions, and other discovery, and more use by Arbitrators of the phrase, "It's their(i.e. the parties' arbitration." It is not. It is the AAA's arbitration. We need to return to the emphasis on saving time, expense, and other such issues. Limiting motions as in the current form for orders on the first preliminary hearing are a start. But the practice of saving expenses, efficient management of the cases, and getting the case resolved should be encouraged in all AAA programs, meetings and seminars. Arbitration is favored by the courts. But the court's favoring arbitration is rather worthless if arbitration is not also favored by those attorneys who draft contracts.

Agree with Mr, Cartagena, about the intrusion of court litigation practice on arbitration and the adverse effects. I suspect arbitration tribunals will eventually implement their own rules of procedure- designed to make the arbitration process less litigious. If all arbitrators and parties have as guardrails are federal and state rules of civil procedure the temptation will be to rely on them more than we should.

Anonymous:

The biggest challenge at the moment is helping the parties control costs while at the same time granting a full an fair hearing and conforming to the applicable arbitration agreement and the applicable rules. This is a particular challenge where the rules or the agreement provided for relatively broad discovery.

One way to cope with this is spending time with the parties and their counsel at the preliminary hearing/scheduling conference on managing discovery and motion practice.

George J. Krueger:

My comments echo those of many others. I am struck by how many lawyers, representing parties in AAA matters, view arbitration as a form of litigation, with multiple depositions and the like. Many react with genuine surprise when told that multiple depositions are not required (or even permitted) under the AAA rules.

The AAA might consider more aggressively "advertising" its rules and procedures (and the benefits they offer), so that parties understand the procedures that will govern their cases when they include a provision calling for the arbitration of all disputes under AAA rules.

Evan Spelfogel:

I have been drafting mandatory arbitration agreements in the workplace for over thirty years. Obviously, they comply with the dictates of the Supreme Court's Gilmer decision in 1991 and provide the complaining employee with all of the substantive rights and remedies that would be available in a court. However, they expressly provide for limited discovery, e.g., each side may take two depositions and seek reasonable discovery of the other, subject to the arbitrator's granting more on an appropriate showing of need. Key to the process, however, is that the hearing shall be before a single arbitrator (typically selected from the AAA's National Panel of Labor Arbitrators or similar body, and an attorney, that the hearing must be held within 90 days of the filing for arbitration, that post hearing briefs must be simultaneously filed within 30 days of the close of the hearing, and that a reasoned decision and award must be filed within 30 days after that. To insure fairness, again pursuant to Gilmer and the Supreme Court's Tree Fruits decision, the complainant pays only the equivalent of a federal court filing fee, while the employer pays for the entire cost of the arbitrator. Each side, of course, bears its own legal fees and the costs of a reporter's transcript, if any, I would be pleased to review this with interested parties.

Margarita Echevarria:

I agree with Anonymous that while the Arbitrator tries to assure a full and fair hearing starting with controlling the process at the Preliminary Conference, the challenge is the broad discovery allowed by the rules or, where the agreement is silent. Attorneys will fall back on what they know-for e.g. depositions, to help them manage the case.

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This page contains a single entry from the blog posted on August 11, 2018 11:12 AM.

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