Figure 2: Arbitrator at Work
Rates and Cancellation Fees: See the standard Agreement.
How I Conduct Arbitrations:
The goal of my arbitrations is to get as just a result as one could get in court, but faster, cheaper and better because more final, and because I do not have a clogged docket or criminal cases requiring priority. Disputes need to be resolved one way or another, so the parties can end the distraction and get on with their normal activities.
Getting a just result: Arbitration should be a change of forum, not a change of result. The legal rules of liability, defenses, damages, and other relief apply fully in arbitration. I do not split the differences among the parties, although an award can grant relief on a good claim and deny relief on a bad claim, just as court judgments do.
Getting a faster result: I manage discovery in the Case Management Conference but freely allow changes for a good cause. I leave the parties to their own devices as much as possible, but try to take quick action on discovery disputes. Motions may be made and answered informally by e-mail, I try to schedule a hearing that day or the next, and I try to rule within 24 hours of a hearing. Since I do not have hundreds of cases on my docket, I do not have a criminal docket to which I am required to give preference, and since I want to resolve employment, healthcare, and commercial disputes, I can usually arrange hearing times to suit the parties. I issue final awards within 30 days of the end of post-hearing briefing or, where briefs are waived, within 30 days of the end of the briefing.
Getting a less expensive and juster result: Most arbitrators prefer to assess credibility after seeing and hearing the witnesses and observing their demeanor. Most will welcome a summary-judgment filing that will dispose of the case on an affirmative defense, such as failure to exhaust administrative remedies or the statute of limitations, but will refuse to allow the filing of a summary-judgment motion based on the weight of the evidence or the credibility of witnesses. Unlike Federal courts, we do not predominantly conduct trials on paper and speculate on demeanor and credibility. Hearings with live witness testimony are far likelier to lead to a just result than a trial on paper, and it is far less expensive to present and cross-examine the witnesses live than it is to crank everything into competing multi-inch packages and pay for the time for someone to wade through it all, with the risk that one will still have to go through a live hearing. As a result, cases in which the parties agree not to pursue summary-judgment motions on the sufficiency of the evidence do not require as much discovery as cases in which a party wishes to keep that option open. Depositions are relatively unnecessary where a party can be assured of the opportunity to cross-examine the witness at the hearing. Lower transaction costs = more money in the bank for both sides.
Witnesses Beyond the Local Subpoena Power: If a witness will not appear without a subpoena but is beyond the subpoena power of the local Federal and State courts—and thus beyond the enforceability of any subpoenas I issue—I will ask the parties for their views on the importance of the witness. If I am satisfied that the witness is both important and irreplaceable, I am willing to hold part of the merits hearing in the area in which the witness will be subject to an enforceable subpoena. Confronted with the choice of voluntarily testifying at a date, time and place convenient to them and being forced to testify at a date, time and place convenient to everyone else, most witnesses decide to cooperate. I take testimony by telephone, Skype, or videoconference.
Conduct of hearings: I prefer the parties to agree on a set of discovery rules, and a set of procedural rules, to be used as guides even if not controlling. It is easier for everyone if we have an agreed frame of reference. Because of the Federal Arbitration Act I allow almost all evidence in, but do not give much, or even any, weight to evidence I do not think is reliable. I do exclude evidence where it was not turned over timely in discovery. Many of the rules of evidence are based on reliability, so I do want evidentiary objections to be made. I will alert the parties when I think objected-to evidence is entitled to little or no weight, so they can decide whether to put in additional evidence.
Sanctions: I do grant sanctions where the rules allow it and they are appropriate. Sometimes, that is the only thing that gets a party on the right track. However, I will not grant a sanction that does not meet the standards of the set of rules the parties adopted. In other words, I will not grant a default or a dismissal merely because the opposing party missed a discovery deadline. If an attorney or party is uncivil and disruptive, however, serious sanctions may be imposed.
Fee-Shifting Cases: If the case is a fee-shifting case, my award of fees will be heavily influenced by my perception of the efficiency with which the party seeking fees has conducted the litigation. If the party seeking fees have been inefficient or needlessly combative, the award will be reduced to the time a reasonable party would have spent, and the rate reduced to the skill level I have observed. If the party opposed to fees has been inefficient or needlessly combative, that will increase the fees the prevailing party reasonably had to incur. Governing case law will be followed within this framework.
Taking Witnesses Out of Order: I have been litigating cases for more than 48 years, and it does not matter to me in the slightest if a witness needs to be taken out of order for the witness’s convenience. I encourage the parties to talk about how the hearing can most economically be conducted and will follow the parties’ suggestions unless there is a good reason not to do so.
Questions to Witnesses: I do ask questions, the same way a judge might, to understand exactly what a witness has said or ask about an inconsistency since it may be that I misunderstood an earlier answer. I do not open new lines of inquiry, because of the risk of upsetting a party’s trial strategy. I generally ask my questions at the end of the parties’ examinations, except where I could not hear the witness’s answer to a particular question or did not understand a term used.
Getting a More Final Result: I keep an eye on the Federal Arbitration Act and on any State Arbitration Act, to minimize the chance that anything I do will increase the possibility of vacatur of the award. Once the parties have spent the time, effort, and money to get a final disposition, I should do everything I can to make sure it will be final.
If you are thinking of using me as an arbitrator, do not call or e-mail or write me by yourself unless you have the explicit permission of the other side. You should call together, or get permission and tell me you have permission. Otherwise, the other side may object to my involvement.
- American Arbitration Association Commercial Roster
- American Arbitration Association Employment Roster
- American Health Lawyers Association Roster
- Parties sometimes choose me as arbitrator without using an arbitration services provider like AAA or AHLA or JAMS, but using a specified set of rules. (I prefer arbitrating with a provider because Case Managers provide useful services and screen me from billing the parties and receiving payments from them, but this is a decision for the parties.)
- Parties can choose me as an arbitrator even if AAA or AHLA is administering the arbitration, merely by telling the AAA or AHLA, they have agreed to my appointment.