Preliminary Conferences and Pre-Hearing Management in General - Chapter 6 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration

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The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition - Hardcover

The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition - Electronic

CHAPTER 6

PRELIMINARY CONFERENCES AND

PRE-HEARING MANAGEMENT IN

GENERAL

Arbitrators’ goals in managing the pre-hearing process are

(1) to work with counsel in devising fair and efficient procedures

for the pre-hearing and hearing phases of the arbitration,

(2) to monitor the parties’ compliance with those procedures,

and (3) to resolve promptly any disputes or problems

that might delay the arbitration.

I. THE IMPORTANCE OF PRE-HEARING

MANAGEMENT

From the time of appointment to the commencement of

the hearing, arbitrators should take an active, hands-on

approach to managing the pre-hearing process by

working with counsel to establish and implement fair

and efficient procedures and schedules that are

appropriate to the particular case.

Like most things in life, getting an arbitration off on the right foot and

keeping it on track are critical to a successful process. Although

responsibility for managing arbitrations falls squarely on arbitrators, they

should not attempt to perform this task without assistance. Counsel, who

know far more about the case than the arbitrators and often have

considerable arbitration experience and insight, are essential partners in the

undertaking. From their first contact with counsel, arbitrators should set a

tone of professionalism, cooperation, and mutual respect. They should

make clear that although the ultimate responsibility (and authority) for

managing the arbitration rests with them, they intend to work with counsel

in developing a process appropriate to the particular case and in turn,

Table of Contents

Chapter 6

PRELIMINARY CONFERENCES

AND PRE-HEARING MANAGEMENT IN GENERAL

by David N. Brainin, James P. Groton, Gerald F. Phillips,

Deborah Rothman, Curtis E. von Kann, and John H. Wilkinson

I. THE IMPORTANCE OF PRE-HEARING

MANAGEMENT

II. CONVENING THE PRELIMINARY CONFERENCE

A. Time of the Preliminary Conference

B. Who Should Attend the Preliminary Conference

C. Location of the Preliminary Conference

D. Giving Notice of the Preliminary Conference

III. CONDUCTING THE PRELIMINARY

CONFERENCE

A. Arbitrators’ Introductory Statement

B. Opening Statements by Counsel

C. Determining the Issues on the Conference

Agenda

IV. MEMORIALIZING THE PRELIMINARY

CONFERENCE

V. MATTERS TO ADDRESS AT THE

PRELIMINARY CONFERENCE

A. Identity of the Parties

B. Claims and Defenses Presented

C. Applicable Arbitration Agreement, Law,

and Rules

D. Disputes Concerning Arbitrability

E. Information Required for Additional Disclosure

F. Disqualification of Counsel

G. Consolidation and Joinder

H. Discovery

I. Motions

J. Providing Specialized Information to

Arbitrators

K. Appointment of Neutral Experts

L. Communication Ground Rules

M. Location of the Hearing

N. Dates of the Hearing

O. Hearing Subpoenas for Non-Party Witnesses

P. Continuances and Cancellations

Q. Nature of Award

R. Time of Award

S. Hearing Procedures Checklist

T. Other Matters

VI. ENCOURAGING MEDIATION OR OTHER

SETTLEMENT EFFORTS

VII. SUBSEQUENT PRE-HEARING

MANAGEMENT

Author Detail

David N. Brainin, Esq., Of Counsel, Locker, Greenberg & Brainin, New York, New York

James P. Groton, Esq., Independent Arbitrator, Atlanta, Georgia

Gerald F. Phillips, Esq., Partner, Phillips, Lerner, Lauzon & Jamra, Los Angeles, California

Deborah Rothman, Esq., Independent Arbitrator & Mediator, Los Angeles, California

Curtis E. von Kann, Since 1997 he has been a full-time arbitrator, mediator, and neutral case

evaluator in the Washington, DC office of JAMS, where he has served as

sole arbitrator, tribunal member, and tribunal chair in a broad range of

xxviii Guide to Best Practices in Commercial Arbitration

commercial arbitrations. Judge von Kann is a member of the Chartered

Institute of Arbitrators in London, a member of the Distinguished Neutrals

Roster of the International Institute for Conflict Prevention & Resolution

(CPR), and Immediate Past President of the College of Commercial

Arbitrators and has lectured and published on many ADR topics. He

served as Editor-in-Chief of the first edition of the College of Commercial

Arbitrators Guide to Best Practices in Commercial Arbitration.

John H. Wilkinson, Esq., JAMS, New York, New York

Preliminary Conferences and Pre-Hearing Management in General - Chapter 6 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition