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......
Professor Amy Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit. Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.
Theo Cheng is an independent, full-time mediator and arbitrator, focusing on commercial, intellectual property, entertainment, technology, and employment disputes. He is a member of Resolute Systems’ Employment and Commercial panels of arbitrators and mediators, the Commercial and Large, Complex Case mediation and arbitration rosters of the American Arbitration Association, the Panel of Distinguished Neutrals of the CPR Institute, a FINRA arbitrator, and an arbitrator and mediator for several federal and state courts. He was also appointed to the American Intellectual Property Law Association’s List of Arbitrators and Mediators and the Silicon Valley Arbitration & Mediation Center’s List of the World’s Leading Technology Neutrals. He was inducted into the National Academy of Distinguished Neutrals in 2019. Theo has conducted over 500 arbitrations and mediations involving commercial and business disputes, breach of contract and negligence actions, trade secret theft, employment discrimination claims, wage-and-hour disputes, and intellectual property infringement contentions. The New Jersey State Bar Association Dispute Resolution Section presented Theo with the 2020 James B. Boskey ADR Practitioner of the Year Award, and The National Law Journal named him a 2017 ADR Champion.
Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.
Daniel focuses exclusively on serving as an arbitrator and mediator. As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.
A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.
Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.
He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia. At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.
George H. Friedman is the publisher and Editor-in-Chief of the Securities Arbitration Alert, a weekly online publication covering the latest developments in financial services arbitration and mediation. He is also the principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA dispute resolution forum in particular.
He is former Executive Vice President - Dispute Resolution of the Financial Industry Regulatory Authority (“FINRA”), a position he held through January 2013. He held the same title at NASD, which consolidated with NYSE Member Regulation to form FINRA in 2007. In this capacity, he was in overall charge of FINRA's dispute resolution program, carried out by the company's four regional offices and 72 hearing locations in the United States and abroad, 200 employees, and an annual budget of $50 million. He also served as Secretary of the Securities Industry Conference on Arbitration. He has been referred to by the U.S. Court of Appeals—4th Circuit as a “leading arbitration expert.” He is a member of the American Arbitration Association's National Roster of Neutrals.
Mr. Friedman is an Adjunct Professor of Law at Fordham Law School, where he has taught a course on alternative dispute resolution since 1996. He is Chairman of the Board of Directors of Arbitration Resolution Services, Inc. of Coral Springs, Florida. Arbitration Resolution Services is an innovative online arbitration services company facilitating an affordable alternative to costly courtroom litigation and in-person arbitration for resolving Business-to-Business, Business-to-Individual, and Vehicle and Property Damage disputes. ARS is unique in that its entire process can be completed online through the company website.
In his extensive dispute resolution career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He joined NASD in 1998 as Senior Vice President of NASD's Dispute Resolution Division, and was named Executive Vice President in 2002.
Mr. Friedman received a B.A. in Political Science from Queens College, and a Juris Doctor from Rutgers Law School - Newark, where he was an editor of the Law Review. He is admitted to the New York and New Jersey Bars and the United States Supreme Court, and is a Certified Regulatory and Compliance Professional. Mr. Friedman is a member of the Securities Experts Roundtable, and of several bar associations. He is past chair of the Committee on Alternative Dispute Resolution of the New York County Lawyers Association. He is a member of the Banking Advisory Committee of Bergen (NJ) Community College.
Mr. Friedman has lectured extensively on the subject of alternative dispute resolution, and has the distinction of being one of the architects of the American Arbitration Association’s Due Process Fairness Protocols for both employment arbitration and health care dispute resolution, and assisted in creating the Consumer Due Process Protocol. He has published often, with articles appearing in the Securities Arbitration Commentator, the ABA's Dispute Resolution Magazine, the New York Law Journal, the Rutgers Law Review, and the National Law Journal. He has blogs at Arbitration Resolution Services, Inc., the Securities Arbitration Commentator, and the World Future Society, among others.
DeAndra Roaché is a professional full-time neutral specializing in arbitration, mediation, and fact-finding of various disputes such as labor, employment, financial securities, construction, consumer, and other business disputes. She conducts arbitrations and mediations via in-person and virtual/online formats. Ms. Roaché works with companies, court systems, and individuals in various industries to assist with their conflict resolution and conflict management needs. Ms. Roaché is also the Founder and President of Cynergis Dispute Resolution Services, an ADR practice that specializes in conflict resolution and conflict management services. Ms. Roaché amassed significant and progressive experience in Financial Securities, Corporate, Contract, and Labor & Employment laws while working at major global law firms in Washington, DC. She has managed numerous high-profile cases; corporate formations, dissolutions, closings: Initial Public Offerings (IPOs); and major SEC regulatory registrations for Fortune 500 companies, industry leaders, sector innovators, and business entrepreneurs. Ms. Roaché served as financial securities subject matter expert/liaison to one major firm’s Asian-Pacific offices as well as the liaison to their domestic corporate and litigation legal teams regarding financial securities matters.