Arbitration.  If handled properly, arbitration can provide resolution with speed, reduced cost and an experienced adjudicator.  However, many parties to arbitration now complain that the benefits are not being received -- that arbitration is too much like litigation (time consuming and expensive).  The challenge is for parties, counsel and the arbitrator to find ways to most directly and effectively pose and resolve the dispute.  I seek to work with parties and their counsel to tailor the applicable arbitration rules as needed to provide that result. 

Making arbitration more efficient - prehearing
There are a number of ways through which parties and counsel can work to make arbitration more efficient, including:

	Drafting with counsel of an Arbitration Submission Agreement that reduces the likelihood of later disputes over scope of the proceeding, discovery, arbitrator's authority, applicable law, motions, or schedule.
	Adoption and, as needed,  modification of procedural rules to provide clarity and certainty; e.g., CPR Rules for Non Administered Arbitrations or AAA Rules.
	Early pre-hearing conference to set a firm schedule for all events. Consider whether a very detailed Scheduling Order will limit later disputes over process.
	Prompt resolution of any discovery issues (using panel chair in applicable cases).

Some options for changes in arbitration process from standard sequences. The process can be changed to better fit the decision needs of the process. Two options that can be compared with the customary sequence are below.

Customary sequence

Preliminary hearing Discovery Prehearing briefs Hearing Award

Standard briefing with phased hearing

Preliminary hearing Discovery Prehearing briefs Hearing is bi or trifurcated with prospect of interim signed awards or unsigned draft awards if appropriate Potential improvement: key disputes are presented side by side, highlighting differences in argument and testimony.

Briefing establishes phased discovery

Opening briefs set scope of facts Discovery is shaped by and responds to opening briefs Responsive brief post discovery Follow-up discovery conducted if needed Hearing (single or in phases) Award Potential improvement: Discovery is phased and driven by the briefs and argument. Parties can direct attention to key issues rather than broad discovery.

Expert - some variations. Some adjustments possible 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.

• Arbitrator appointed neutral experts, such as contemplated under CRP Rule 12.3, which states that:

 "The Tribunal, in its discretion, may require the parties to produce evidence in addition to that initially offered. It may also appoint neutral experts whose testimony shall be subject to examination by the parties and the Tribunal and to rebuttal."

Hearing efficiency.

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..

Use of multi-phased hearings (such a breaking the case into particular time periods or topics rather than proceeding with each party's full case in chief or defense.) Parties could agree to sequence testimony, rulings (such as interim orders or partial awards), motions or other procedures in accordance with logical decision-making, rather than requiring a single decision at the end of all evidence. Where suitable, consider using a phased approach for briefing and discovery rather than customary trial approach, such as the Phased process below:

	Use of joint exhibits, exhibit notebooks, and submission of certain testimony by affidavit or deposition.
	Where appropriate to expedite and illustrate disputes facts, use a "side by side" format for expert testimony (for example, both experts sworn simultaneously, answer the same questions from the arbitrator(s) and under some perhaps can ask each other questions).
	Schedules for multi-week hearings. Although many counsel seek to finish a hearing as soon as possible, under some circumstances counsel in longer hearing prefer to schedule four day weeks - so that attorneys and business representatives can have an "office day" each week.