By Bryanna Rainwater
An Oct. 1 College of Commercial Arbitrators online program provided interesting nuts and bolts on arbitration before proceedings begin.
The CCA, an invite-only membership group of about 250 arbitrators based in Austin, Texas, that advocates for best practices, presented the first of a series of 20th anniversary arbitrator talks with Juris Publishing of New York.
“Using the Pre-Hearing Conference to Win Your Commercial Arbitration (CCA Series, Session I),” featured the following panelists:
- David Kitzen, Chief Operating Officer, Juris Legal Information, Huntington, N.Y.
- L. Tyrone Holt, Managing Principal, Holt Group LLC, Denver
- Eugene I. Farber, Partner, Farber, Pappalardo & Carbonari, White Plains, N.Y.
- Laura A. Kaster, Esq., Arbitrator & Mediator, Princeton, N.J.
- Richard H. Silberberg, Partner, Dorsey & Whitney LLP, New York
The panel discussed issues surrounding preliminary hearings, including preparation before the hearing, knowledge of the arbitral rules that will govern the preliminary hearing, and advice for speaking with counsel beforehand.
The panel members stressed the value of flexibility among the parties and the need to come prepared to the preliminary hearing. Tyrone Holt advised, “You need to be as prepared to talk to the arbitrator as the arbitrator is to talk to you.” Laura Kaster noted, “One of the things that I think is very different about arbitration is that the advocates have an opportunity to define the process if they want to.”
Holt added, “As an arbitrator I come to the preliminary hearing with three modes and three goals. My first mode is to listen,” as a way to gather information and see if the parties are in line with the rules of arbitration they chose. He continued, “My second mode . . . is to try mediate, cajole, [and] serve as a communication link to resolve by agreement those disputes which you have, or disagreements that need to be addressed, in order to get a scheduling order in place.”
The final goal “which is by default, when necessary,” said Holt, “is to decide those issues which need to be decided that you all can’t agree upon during the scheduling conference.”
When asking whether the parties should routinely meet ahead of the preliminary hearing, Laura Kaster, who heads her own independent ADR practice, noted, “I think this is a topic that actually . . . arbitrators differ about, and differ in different cases about.”
Panelist Eugene Farber said that he encourages the practice “because it saves time and money,” which is a key aspect and drawing point for parties interested in alternative dispute resolution. But he cautioned that “it depends on the nature of the case. If I perceive that counsel are not getting along, . . . and this is a really significant dispute, then I won’t do it.”
The panel also discussed issues surrounding subpoenas and depositions, noting arbitration’s difference from courts and that the practice is not subject to traditional civil procedure rules. Farber noted that “this is complicated. . . . In some states like New York, and I think Illinois, counsel has the independent right to issue subpoenas, so that makes it more complicated. If you’re in one of those states, you may want to check with your arbitrator because a lot of arbitrators don’t like that. They don’t want counsel issuing their own subpoenas. They want to control their own proceeding.”
Farber also cautioned that, on the other hand, “There are some states and federal circuits that say that an arbitrator does not have the right to issue a subpoena to a third-party witness.”
As to arbitration hearing confidentiality, Laura Kaster said that “this is an area that most people confuse. Arbitration is private, but . . . there aren’t constrictions on confidentiality with respect to everyone. Most of the rules apply to the arbitral institution and the arbitrators but many of the rules do not apply to the parties, the counsel and the witnesses.”
She further stressed the need for witnesses to be subject to confidentiality since they are often overlooked.
Farber urged attorneys going into the preliminary hearing, “Know your rules,” because they differ among arbitral institutions, such as the American Arbitration Association and the International Institute for Conflict Prevention and Resolution. He added, “CPR, for example, says the entire proceeding is confidential. So you have to know your institution’s rules.” See Rule 20 on the presumption of confidentiality of CPR’s 2019 Administered Arbitration Rules at http://bit.ly/2SGoW0z.
When discussing relief requested and dispositive motions, the panel had differing views. On granting relief, Tyrone Holt said he uses the practice of setting out relief requested early on to avoid a possible “fishing expedition” for relief.
But panelists Laura Kaster and Eugene Farber noted that there are times when the amount or type of relief requested may change over the course of discovery and disclosure.
The panel members agreed that a request for a dispositive motion is a tricky subject. Farber noted that arbitrators are more reluctant than a typical trial judge to grant dispositive motions. “We got to get it right,” he said, “because there’s no appeal” in arbitration which makes the arbitrator’s decision more final than a judge’s ruling. Farber suggested that using an “ex-judge arbitrator” in these situations may be helpful.
Overall, the panel suggested that to make a positive impression on your arbitrator, come to the preliminary hearing well prepared. Kaster reminded the online attendees that “it is a small room when you’re in an arbitration. [In] a small room or a small Zoom, you have to keep the civility level up and the antagonism down.”
Holt said, “Come prepared based upon the facts, the law and the rules.” Farber advised to “not be particularly hard-nosed,” especially in light of family or personal issues in relation to the other parties in scheduling the session. The panel members emphasized as important arbitration management skills the need for knowing the rules, making an effort to speak to the other side before the session, being courteous, and perhaps even using humor when appropriate.
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The author, a second-year student at Brooklyn Law School, is a 2021 CPR Fall Intern.