Originally from Dispute Resolution Journal

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I. INTRODUCTION

In part 1 of this 2 part series, we explored the challenges, judicial
and administrative imposed rules and obligations and arbitrator duties
and responsibilities connected to and implicated by pro se
(unrepresented party) arbitrations. We discovered that chief among
the challenges is that the pro se party is very often poorly informed or
deeply distrustful of the process, unskilled in advocacy and outresource
by the represented party while the represented party is
usually relatively more sophisticated, advocacy competent and
frequently objects to any “help” given to the pro se party by the
arbitrator as unfair and prejudicial. We also learned that courts, as
illustrated by the US Supreme Court case AT& T Mobility v.
Concepcion (2011) and its progeny, and the due process protocols of
arbitration service providers, such as that of the American Arbitration
Association, are increasingly insisting that all arbitrations particularly
those involving consumers, employees and small businesses be
structured and conducted fairly. Finally, after examining judicial
precedence, service provider rules and various state and model
arbitrator codes of conducts, we concluded that arbitrators have a
duty, to assure fairness to all sides in the pro se proceedings over
which they preside. This author christened these collective directives
by courts, administrative agencies and code of conducts as “The
Fairness Imperative”. The author believes that satisfying the “The
Fairness Imperative” is essential to protecting the reputation of
ADR (Alternative Dispute Resolution) and to the continued expanded
legitimacy, use, acceptance of ADR.

In this article, strategies and best practices suggestions will be
provided to help arbitrators more effectively manage pro se
arbitrations in a manner that is orderly, efficient and evenhanded.
Perhaps even more importantly, these strategies and suggestions are
calculated to help arbitrators discharge their duty of fairness and
satisfy the “The Fairness Imperative” for pro se arbitrations.

II. EFFECTIVE MANAGEMENT OF THE PRO SE CASE

Years of experience arbitrating pro se cases has imbued the author
with a keen awareness and sensitivity to approaches, strategies and
techniques which may be employed by arbitrators to competently and
effectively manage such cases. Arbitrators will find that these
practices are relatively easy to understand and apply. Their use has
also been shown to enhance efficiency in the administration of pro se
matters, reduce party anxiety and concerns and enhance party
satisfaction with their pro se experience. They also greatly increase
the probability of achieving (and being seen by both parties as
achieving) the goal of fairness (i.e. achieving the fairness Imperative)
to all parties in the pro se case.

Arbitrators can effectively manage their pro se matters by
employing a 6 element PS-CMA (Pro Se Case Management Approach)
as discussed below. The recommended PS-CMA consists of the
following elements: 1. Initial Case Assessment; 2. Establishment of
Arbitrator—Case Administrator team; 3. Early Arbitrator Engagement
with the Parties; 4. Embracing the “Arbitrator as Educator” Role; 5.
Demonstratively Impartial Conduct of Hearings; and 6. Documentation
of All Rulings and Actions.

The 6 elements of PS-CMA are discussed below:

1. Perform Initial Case Assessment(ICA)

To paraphrase military strategist Sun Tzu from the treatise The Art
of War: “Know yourself, know the others; a thousand encounters, a
thousand favorable outcomes.”

Thus, the effective management of the pro se case begins with a
self-assessment by the arbitrator. The management of the case begins
from the moment the arbitrator is appointed. Does the arbitrator have
the right stuff for the pro se case? The “right stuff” consists of the
right mix of demeanor and people skills, appropriate subject matter