Chapter Eleven: The Hearing on the Merits - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor A. Holt Gwyn is recognized in the United States and Latin America for his arbitration and mediation practice. His ADR practice complements his legal practice, which is concentrated in construction, environmental, and business contracts and disputes. Mr. Gwyn has coauthored several books and is the author of more than two dozen articles on construction and environmental topics and on resolution of disputes by arbitration and mediation.
Mr. Gwyn has served as Chair of the world’s largest organization of construction lawyers, the ABA’s Forum on Construction Law. In 2014, he received the Forum’s highest achievement “Cornerstone” award. He is a Fellow and in 2016–2017 served as President of the American College of Construction Lawyers. He is also a Fellow of the College of Commercial Arbitrators and a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, London, England.
Mr. Gwyn is a founding member of and former Chair of the Section of Construction Law, North Carolina Bar Association. He is a Charter Member of the N.C. Academy of Superior Court Mediators. He has served as arbitrator on many AAA, ICDR, ICC, and CPR administered arbitrations and also serves on the AAA’s Construction Mega Panel and Large, Complex Case Program Panel of Arbitrators and Neutrals; he is included on the CPR International Institute Distinguished Panels of Neutrals, including its Environmental and Construction Panels. For more than a decade, he has been regularly listed in Best Lawyers in America, Super Lawyers (Corporate Counsel Edition), and Who’s Who in American Law.
From 2007 to 2014, Mr. Gwyn was the Editor in Chief of the Journal of the American College of Construction Lawyers, published by Thomson-Reuters-West. From 1996 to 2004, Mr. Gwyn served as a Charter Trustee of North Carolina’s Clean Water Management Trust Fund.
He is a graduate of the University of North Carolina, Chapel Hill (BA 1971) and Wake Forest University School of Law (JD 1976).
Editor John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. He has taught arbitration law as an Adjunct Professor in several law schools, including Pepperdine, Loyola, Creighton, and University of Missouri–Kansas City, and has made CLE presentations on ADR topics throughout the world, including, most recently, at the USC/JAMS Advanced Arbitration Institute, and at training programs sponsored by the AAA concentrating on more challenging topics such as arbitrability and jurisdiction, federal preemption, the power to summon nonparties, the preclusive effect of arbitral awards, the role of law in arbitral deliberations, and presentation of damages in the arbitral forum.
Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million.
Contributors:
Henri C. Alvarez, Vancouver, Canada
William L. D. Barrett, New York, New York
Louis A. Craco, Manhasset, New York
William B. Fitzgerald, Los Angeles, California
James P. Groton, Atlanta, Georgia
John A. Sherrill, Atlanta, Georgia
Allison J. Snyder, Houston, Texas
Curtis E. von Kann, Washinton, DC
THE HEARING ON THE MERITS
The arbitrators’ goals with respect to the hearing on the merits are to (1) provide each party a fair opportunity to present its evidence and argument; (2) make the hearing as smooth, efficient, and expeditious as possible; and (3) provide arbitrators all the information they need to properly resolve the issues presented.
I. DESIGNING THE APPROPRIATE HEARING PROCESS
Arbitrators should use their broad discretion to establish and carry out hearing arrangements and procedures that are fair, appropriate to the case, and to the extent reasonably possible, acceptable to all parties.
Consistent with the common law, the rules of most arbitral institutions accord arbitrators broad discretion to manage arbitration hearings. For example, Rule 9.1 of the CPR Non-Administered and Administered Rules provides that “[s]ubject to these Rules, the Tribunal may conduct the arbitration in such manner as it shall deem appropriate.” See also JAMS Rule 22(a) (“The arbitrator will ordinarily conduct the arbitration hearing in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined reasonable and appropriate to do so.”). AAA Rule R-32(b) also grants wide discretion:
The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.