Originally from Dispute Resolution Journal

MS. NEWHALL: We’re here to discuss large, complex cases and the procedures that are available through the Association’s Large, Complex Case Program. We’d like you to share with us your ideas about the best practices for handling large, complex cases and how the Association can help meet the parties’ needs.

The Association introduced large, complex case procedures in 1993, but it has been handling large, complex cases since its inception in 1925. Right now we’re refocusing our attention on the LCC program in an effort to see if there are ways to improve our procedures and neutral training to better serve clients in the future. This is one of many dialogues we hope to have with clients, neutrals and counsel.

I will start with a quotation from an article by David Wagoner on managing international arbitration. He said, “Proper management of the arbitration process is a responsibility to be shared by the parties, the tribunal, the tribunal institution.” This raises the question, what is proper management? So let me ask you, based on your experience as neutrals, what do you do to set the stage for managing a large, complex case? What tools do you use and how do you inform the parties of these techniques?

Use of Preliminary Conference*

MR. SKLAR: I’ll start off. I think the initial pre-hearing conference is the most important step in managing the case because that’s the point at which everybody is taking the measure of everybody else—the panel of the parties, and the parties of the panel. There is a tendency sometimes to make this conference the only preliminary conference. I don’t think that’s a wise decision at that stage because I don’t know enough about the case at this early junction. I may only have a Demand that says, “You owe me $9 million,” and a Reply that says, “No, I don’t.” I need more. So I ask the parties and counsel to focus in on what the case is about. The claimant usually gets very frustrated when I ask, “How did you get a $9 million damages figure?” Counsel might say, “Well, it’s kind of a guess. We don’t know what our numbers are yet.” So I think the initial pre-hearing conference is the point at which the arbitrator should have the parties educate the arbitrator about the case.

MS. NEWHALL: Do you hold the pre-hearing conference in person or on the phone?

MR. SKLAR: I’ve done these conferences both ways. Of course it’s nice to have everybody in front of you so you can make eye contact, but I don’t think it’s that critical. Your tone of voice can be as effective as looking somebody in the eye.

MR. BULMAN: I concur. I think you do a disservice to the parties if you take action to manage the case before you have a good idea of what it’s about. A pre-hearing conference is the ideal forum to find out more about the case and to learn about the parties’ concerns. At the hearing I find it effective to ask the parties to suggest what they think would be an appropriate schedule. I like to have the parties participate in scheduling, rather than imposing a schedule on them, because it is more likely that they will agree to the chosen dates.

MR. WILKINSON: Different arbitrators handle these conferences in different ways. I tend to treat it as more of a procedural event. The submissions that I receive in large, complex cases usually give me a fairly decent idea of what the case is about. If I start out by asking the parties to tell me about the case, the conference can degenerate into a shouting match. Accordingly, I tend not to do that. Instead, I try to devise a comprehensive road map that covers everything from discovery to the hearing dates. Then, I make it clear to the parties that some of these dates can be adjusted without too much trouble, but not the hearing dates. Those are firm.