The author, a senior partner with the firm of Gadsby & Hannah in Boston, is a member of the AAA’s National Construction Dispute Resolution Committee and served as vice chair of the Association’s National Construction ADR Task Force.
Much has been written about managing the arbitration process. Almost all the literature focuses on the pre-hearing process. While the pre-hearing process is important and a well-managed pre-hearing process greatly increases efficiency and reduces the time and expense of the hearings, the hearing process itself is equally, if not more, important.
Arbitration is commercial, not judicial. Arbitration hearings should not emulate court hearings. However, the great wealth of experience in managing adversarial proceedings resides in our courts. We should be able to learn from this experience and to adapt appropriate procedures to improve the arbitration process.
What follows are some techniques that may be employed to make the hearings themselves more efficient and faster, and at the same time preserve fairness and an equal opportunity for the parties to present their positions. Welltrained arbitrators should have experience in applying and managing these techniques, and most of all knowing which techniques are appropriate for particular hearings.