ACR-GNY - Proactively Managing a Case

Proactively Managing a Case

Friday, March 14, 2025 3:12 PM | Anonymous

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What is the appropriate balance between an arbitrator proactively managing a case and recognizing party autonomy? What do you see as the appropriate balance here?

What are your thoughts?

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Saturday, March 15, 2025 4:50 PM | Jim Burgess

I defer to the parties’ agreement as much as possible. I will push them to explain their reasons to make sure it has been thought out and I will push them to consider possible obstacles and practical issues. If a schedule is too breezy, I may push them to consider an earlier date. But I will typically defer when presented with a well thought out plan. I think my job is to make sure they have thought it through sufficiently. If possible, rewarding agreement promotes civility in my view.

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- Saturday, March 15, 2025 5:25 PM | Mark C. Zauderer
  
  I agree with these comments. As long as I am satisfied that counsel is pursuing a responsible, course, I would be inclined not to apply a heavy hand. While I recognize that we have a responsibility to ensure that clients are not being burdened with unnecessary costs, in the absence of evidence of that, I am generally inclined to be deferential.
  
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Saturday, March 15, 2025 5:29 PM | Michael Seng

I will inquire as to the reasons and may opine if my thinking difers, but generally will defer to the parties unless the request or proposal seems extreme -- e.g. a one year hiatus; an eve of final hearing stip to bring in another party; etc.

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Saturday, March 15, 2025 7:42 PM | Lisa Renee Pomerantz

It is the arbitrator's responsibility to provide a fair and efficient process. That is not the mission of the parties and counsel, one or more of which may look to delay, obstruct or needlessly complicate the process or engage in unfair tactics. To the extent that parties or counsel seek to do so, it is the arbitrator's responsibility to counter those efforts through proactive management of the case.

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Sunday, March 16, 2025 4:11 AM | Frank Burke San Francisco

As a long time litigator before becoming an arbitrator, I start with the premise that the parties chose arbitration to get a speedier and more efficient process than the court system. So I propose, but never mandate a schedule that can get us to hearing within 6-8 months. More often than not, the parties are happy to work towards that result and make good compromises to get there. I am always happy when the parties talk about all this before our preliminary hearing. Trial conflicts or witness problems can arise which we deal with.

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- Sunday, March 16, 2025 8:22 AM | Denise Presley
  
  Frank Burke … Well said. Thanks.
  
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- Friday, March 21, 2025 7:59 AM | Paul Mason, Miami and Rio de Janeiro
  
  A challenging example is when counsel are litigators inexperienced in arbitration practices and procedures. Then I will try to educate them with courtesy in order to help save parties time and costs.
  
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Sunday, March 16, 2025 11:33 AM | Thomas

The parties are in arbitration because they could not find agreement themselves, even after possible mediation. They have the autonomy to put forward their case with efficiency, and decorum. I strive to lead and guide the process accordingly.

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Sunday, March 16, 2025 2:25 PM | Dustin Hecker

Bottom line, I usually defer to counsel but try to rein in unnecessary discovery or other activities even if agreed by counsel. For reasons I cannot fully explain, in my experience most attorneys see arbitration as a more cooperative dispute resolution process than litigation. I expect counsel will cooperate in setting schedules, agreeing to discovery techniques, etc. So, when I ask counsel to agree on a schedule and what they would like for discovery, I generally receive a proposal that with minor tweaks will work for my purposes. Which absolutely involves ensuring the process is quick and efficient and the clients aren't charged for needless work by their counsel. I will push back on schedules I believe to be too lengthy, or if counsel want more than 1 or 2 depositions per side (especially of people the parties control or who can be subpoenaed to testify at the hearing on the merits), or if they want to waste their time and their clients' money with interrogatories or requests to admit or the like. If I have the opportunity, I have no trouble working with counsel to make sure both sides know what the other side really seeks through document requests. I almost always require counsel to identify within say 2 weeks any substantive objections to document requests so they can discuss the objections and if necessary I can resolve them before the parties and counsel start rooting through archives to find any and all potentially responsive documents.

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- Sunday, March 16, 2025 4:46 PM | John Shope
  
  Arbitration is a process to which the parties have consented,
  Parties should be free to consent to variations of the process. I see two exceptions. The principal exception to that is unreasonable pre-hearing schedules that make it more likely that that the final hearing dates will have to be moved. Both the arbitrator and non-parties should be able to rely on hearing dates. I usually find that when I point out where unreasonable deadlines pose that risk (e.g., amendment of the pleadings one week before hearing), the parties are willing to vary their prior agreement.
  
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Sunday, March 16, 2025 3:44 PM | Luke Taylor

In my experience as a mediator, I've observed that people tend to communicate more openly and work toward solutions when they feel a sense of control within a structured environment. I believe an arbitrator (or mediator) should primarily guide discussions, stepping in when conversations become unbalanced or unproductive to help restore focus and fairness.

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Sunday, March 16, 2025 8:03 PM | Ernest C Brown, Esq PE

It is the parties' case and their respective counsel have the obligation and the autonomy to prepare it as they think will be most effective for their clients. However, I remind them regularly of the AAA Rules and their prior agreements regarding Discovery and the timing of the Hearings. In my thinking, one of my goals is to fast track the exchange of documents and expert information so the parties and their counsel have an opportunity for early resolution, by negotiation or mediation. While some of the rules restrict what would be available in litigation, the flexibility of the AAA Process (such as the Preliminary Hearing and Scheduling Order) allows the parties and counsel to agree on the early exchange of documents, preliminary expert reports, and other information that would be useful to convince the other side to settle. And that most cases in arbitration do settle prior to the evidentiary hearing.

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Monday, March 17, 2025 1:04 AM | Nahendran Navaratnam

In general assess each case with a view to establishing an appropriate length of time between the inception of the arbitration and the hearing date. Then parties are invited to establish a timeline for each step to meet the targeted hearing dates. I rarely allow the parties to dictate the pace of the arbitration but seek to impose some degree of discipline and efficiency.

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- Monday, March 17, 2025 10:16 AM | Robert L. Arrington
  
  It's a balancing act. Each case is different. I discourage unreasonable discovery but allow some discovery. I don't like to approve multiple postponements, but sometimes, they are necessary. At the hearing, I like to let counsel try their case and don't sustain many objections.
  
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Monday, March 17, 2025 10:24 AM | Amy Eckman

Just this past weekend, in a case in which the parties, by consent, have requested several times to delay the post-hearing submissions, including both the merits submissions and the costs and fees submissions,, dragging it all out to nearly 5 months after the evidentiary hearing to final award, I sent the following email to counsel:
"Counsel:

The evidentiary hearing in this matter was December 13, 2024, more than three months ago.

Because in general arbitration is supposed to be largely party driven, I have consented to your agreed-to requests for delays in submission dates, and will do the same for this request, even though it is also my duty to move the process forward to a speedy conclusion in the most economical fashion.

Thinking about all this, and mindful of the work you might both expend on the costs and fees issue, I wonder if it might be more efficient at this time to bifurcate the costs and fees issue from the merits decision and issue a "partial final" or "interim" award just on the merits of the case based on the March 19, 2025 submissions. Depending on the determinations of that "partial" or "interim" award we could then proceed with a cost and fees submission by the prevailing party only, based on a schedule, including responses, that you should agree to at that time?

This would get you a merits award sooner, mitigate the need for both parties to make costs and fees submissions (only one party would do this, assuming that costs and fees are allowed in the award), though it also might elongate the schedule for a final award that incorporates both components.

Let me know if you want to consider doing this - if not, I will consent to your revised proposed post-hearing schedule. I certainly don't want to complicate things or delay things even further."

I did receive a response that under these circumstances they would in fact prefer to get an earlier merits award, rather than wait even longer to get a final award that includes everything. I was responding to the tension between allowing party autonomy and balancing the economies and efficiencies of the process.

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Monday, March 17, 2025 5:29 PM | Retired Judge

It is a balancing act much of the time. The purpose of arbitration is to achieve a prompt but thorough decision and award. If counsel can set a schedule that meets these requirements, the Arbitrator's intervention is unnecessary. If not, intervention and proactive management may be necessary. The best time to insure that proactive management will not be necessary is at the Preliminary Hearing and then at any subsequent request for any extension of the merits hearing. Proactive management must be considered thereafter.

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Tuesday, March 18, 2025 1:11 AM | Anonymous

Best left to the parties. But there is an obligation to keep the case moving forward to avoid delays.
The Hon Neil Brown KC

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Monday, March 31, 2025 11:30 AM | Allan Marain

I abide by the parties' availability to proceed provided it is not unreasonable. What is "reasonable" requires evaluation of the complexity of the case, counsels' other commitments, and whether or not the parties agree.

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Saturday, April 12, 2025 1:01 PM | Alan Pralgever

As long as counsel are acting and working together that is a good thing and fine with me. Of course, they should tell you what they are doing and thinking. However, its great when they have a plan as long as they are moving forward with it. It's our job just to keep the discovery and case moving.

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