Volume 11, Issue 4 - April 2013

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VOLUME 11, ISSUE 4: FROM OUR FRIENDS

Launching the Arbitration: The Pre-Hearing Conference [1]

by Harvey J. Kirsh[2]

The initial pre-hearing conference, which launches the arbitration proceeding, is an important opportunity for the arbitrator to set the stage, to establish protocols, and to define and shape the entire process.

One preliminary issue is whether the initial conference should be in person or by telephone conference call.  The better view is for the first conference to be live and face-to-face.  The parties must make a commitment to carve out part of their schedule for this important preliminary event, and they would all be in the same room at the same time, with limited opportunity for distraction.  Sometimes, that meeting is the first time the parties have the opportunity to meet both each other and the arbitrator.

A second preliminary issue is whether the initial conference should be restricted to counsel, or whether clients should be invited to attend.  The more popular view is that clients should attend.  With clients (particularly general counsel) in attendance, there is a greater opportunity for them to have input into the cost, duration and nature of the process.  Experience dictates that, for example, counsel who have requested leave of the arbitral tribunal to depose a large number of fact witnesses over the course of many months, are sometimes overruled by clients and in-house counsel who are looking to streamline the process and reduce cost.

The agenda for the initial pre-hearing in-person conference will often begin with a discussion about the scheduling of the actual arbitration hearing.  Production, discovery and other interlocutory proceedings would then be slotted along the continuum of the timeline, which would be completed by, and culminate in, the hearing date.  Additionally, the conference should include a discussion of:

  • whether any motions are immediately contemplated at an early date, and, if so, the scheduling of the hearing and the exchange of motion materials and Briefs;
  • the nature and delivery schedule for the exchange of pleadings.  Pleadings should not consist of a skeletal overview, as one might expect to find used in litigation, but rather should be more detailed and thorough, possibly referencing evidence, and possibly having select important project documents attached;
  • the nature and extent of the parties’ documentary production, including the parties’ plan for the organization and exchange of document lists, and the parties’ intentions regarding scanning, coding, and electronic production.  The parties are also encouraged to collaborate on the preparation of an electronic Book of Joint Exhibits (using a USB flashdrive or other such memory data storage device containing images of all such exhibits), properly indexed and consecutively numbered, for use at the arbitration hearing;
  • the intent of the parties with respect to the scheduling and extent of the oral examinations for discovery.  Procedural rules of many provinces now dictate that such examinations, in a litigation context, should be limited to one representative of each party, and should not exceed seven hours in duration; and that restriction should inspire the parties to the arbitration to streamline their examinations in the same manner;
  • the disclosure of a preliminary list of witnesses by an early deadline date, followed in due course by the disclosure of the final list of witnesses.  Aside from the obvious benefit to the parties of early disclosure of witnesses, this also assists the arbitral tribunal in revisiting their conflict of interest due diligence;
  • the intent of the parties with respect to the scheduling and extent of the oral depositions of fact witnesses (if this is to be undertaken);
  • the scheduling for (i) the designation of expert witnesses; (ii) the exchange of experts’ reports; and (iii) the intent of the parties with respect to the scheduling and extent of the oral depositions of expert witnesses(if this is to be undertaken);
  • the scheduling for the exchange and filing of the parties’ pre-hearing (and possibly post-hearing) Arbitration Briefs, as well as the electronic Book of Joint Exhibits and the USB flashdrive (or other such memory data storage device) which are to be used at the hearing;
  • the issuance of subpoenas for third party witnesses; and
  • the time required for the hearing itself, and the details of the parties’ requirements (e.g., size of boardroom?  court reporter ?  audiovisual equipment?)

Given the number and extent of these inquiries, the discussion at the initial pre-hearing meeting will often extend to a full day.  Having said that, anecdotal studies and inquiries undertaken at many arbitration roundtables across the United States indicate that, according to clients, many pre-hearing arbitration conference calls and meetings are rushed, and unfortunately are usually limited to approximately fifteen minutes.  The view was that these meetings should be taken more seriously by both the parties and the arbitrators, in order for the process to be managed more efficiently.

Additionally, roundtable discussions indicate that clients are of the view that, at the initial pre-hearing conference, the arbitrator should canvass ways for the parties to limit discovery.  Clients expressed concern about the arbitrator “opening the floodgates for unnecessary discovery.

After the initial pre-hearing conference, the arbitrator will usually issue a Procedural and Scheduling Order, which will generally serve to define the process and the timeline from that date forward until the hearing.

A well organized launch of the arbitration process will give the parties a measure of confidence that the arbitration will proceed without the delays and other pitfalls typically inherent in litigation.

Link to Original Publication: http://www.lawyersweekly-digital.com/lawyersweekly/3218/?pg=11#pg11

 


[1]  This article was previously published in the ADR Focus section of the September 14, 2012 issue of The Lawyers Weekly

[2] B.A. (Tor.), LL.B. (Osg.), LL.M. (Harv.), C.Arb., C.S. is Arbitrator and Mediator with JAMS’ Global Engineering and Construction Group ( New York, Miami and Toronto Resolution Centers).  He is a Fellow of the College of Commercial Arbitrators.

Posted in: Volume 11, Issue 4

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