Efficient arbitration

On approximately 65 occasions, I have  been appointed as an arbitrator or a court appointed evaluator/special master. I have issued awards or interim awards on more than 30 occasions. I am concerned over the trend that arbitration now seems to have lost its value for speed and cost efficiency – so I work to try adjusts to return arbitration to its intended and cost effective function. This is motivated in part by the CCA Protocols for Expeditious, Cost-Effective Commercial Arbitration.

Some approaches to more efficient arbitration can include the following:

Prehearing focus

• Use of a very detailed scheduling conference to provide clarity about how we will go forward. Example outline for such a conference.
• Consider phased discovery where appropriate; such as (1) Briefing establishes phased discovery; (2) Opening briefs set scope of facts and discovery is shaped by and responds to opening briefs; then (3)Responsive brief post discovery with any needed follow-up discovery conducted
• Prompt resolution of any discovery issues (using panel chair in applicable cases).
• Use one or more prehearing conferences with the arbitrator or panel to focus evidence

Hearing time used as efficiently as possible

• Hearing is bi or trifurcated with prospect of interim signed awards or unsigned draft awards if appropriate
• Key disputes are presented side by side, highlighting differences in argument and testimony.
• Expert – can include side-by-side (i.e. simultaneous) expert testimony on specified subjects, with each expert sworn and responding to a sequence of questions by legal counsel, the arbitrator(s) and in certain instances – by the other parties’ expert.
• Consider a provision or agreement that permits the arbitrator or panel to limit testimony for efficiency with a confirmation that the exercise of such power does not provide parties with any rights to later vacate the award. This could be a written confirmation from the parties that the arbitrator is authorized and encouraged to appropriately limit evidence, and that no appeal rights are enhanced thereby.

Experience

My arbitration experience includes cases concerning the following.