In this round of Arbitration Tips-N-Tools (TNT), Professor Amy Schmitz asks some of the leading arbitration practitioners about planning and executing a preliminary arbitration hearing, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
Round 2: What are your 3 top tips and/or tools with respect to planning and executing a preliminary arbitration hearing – especially in the digital era and complexities of Covid?
A) Theo Cheng –
- Consider spending a little more time, energy, and creativity putting together a persuasive, well-framed statement of claim (much like a complaint in court). Filing a detailed statement of claim, along with the formal demand (usually a simple form), is a strategic opportunity for the claimant to persuade the tribunal well in advance of the evidentiary hearing because it is one of the few documents provided to the tribunal even before the initial case management conference (or preliminary hearing) in the proceeding. In the absence of formal pleading rules like in court, an advocate has a lot of flexibility and leeway in crafting the statement of claim, and, hence, can take a fair amount of liberties with the text without the fear of having to later defend the equivalent of a motion to strike for having pled “redundant, immaterial, impertinent, or scandalous matter.” Although there might be some additional cost in putting together a statement of claim, that document can be a helpful piece of advocacy for the claimant.
- In drafting the demand/statement of claim, it is very common to insert, almost as boilerplate, a request that the tribunal award reasonable attorneys’ fees in the prayer for relief. Doing so can have unintended consequences. Generally, a tribunal is not permitted to award attorneys’ fees unless the parties have contractually authorized such an award in the arbitration clause or if the governing substantive law provides for such an award. However, if the parties independently request an award of attorneys’ fees in their arbitration pleadings, under at least one provider’s procedural rules, those requests can operate to provide authority to the tribunal to render such an award.
- Advocates should be mindful that, unlike court pleadings, the demand/statement of claim are almost always reflexively marked as exhibits at or before the evidentiary hearing by the parties and/or the tribunal and are often deemed admitted as part of the evidentiary record. Thus, any statements made in these pleadings that end up being inconsistent with the actual evidence adduced at the hearing may create certain evidentiary difficulties at the end of the proceeding. That said, it is still ultimately up to the tribunal to determine the evidentiary weight to be accorded the pleadings.
B) Daniel Urbas –
- Require parties to consult among themselves before the first preliminary hearing and to discuss specific procedural steps which arbitrator can propose in an e-mail sent to them requiring discussion.
- Require parties to send to the arbitrator their agreed-upon steps and flag any disputed steps 48 hours before the preliminary hearing.
- Invite parties to submit agenda items no later than 72 hours before the preliminary hearing, advising that failing receipt no new items can be added (but can be added to next hearing), as it reduces surprises
C) George Friedman –
- Set expectations: I send a checklist laying out what I plan to cover. Here’s my mediation list.
- Don’t use a cell phone: Since all participants are most likely working from home, use a landline or the computer for better audio (and video) quality.
- Be sure participants are prepared: In other words, if you plan to discuss dates for various deliverables advise the participants to have their calendars open. If you have questions about, for example, an aspect of the claim, advise the participants to have pages so and so of the demand handy. Generally, my email sending the checklist covers this.
D) DeAndra Roaché –
- Use a scheduling program to make it easier and mutually convenient to schedule hearing dates with parties.
- Secure stipulations from parties where possible, such as issue(s), facts, witness/expert affidavits and encourage pre-hearing stipulation of the authenticity of documents.
- Consider adding provisions to the scheduling order that address witness space, no virtual backgrounds, and equipment expectations.
- Include Arbitrator’s cancellation/postponement policy in the scheduling order
- Identify/Address any preliminary issues.
- Inform parties that professional attire for the hearing will be required.
- Determine if any special accommodations will be needed such as closed-captioning if an e-platform will be used, court reporter, interpreter, etc.
Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week……