Chapter Six: Prehearing Conferences and Prehearing Management in General - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor Laura A. Kaster comes to her work as a full-time arbitrator and mediator from a background first as a litigation partner at Jenner & Block and then as Chief Litigation Counsel for AT&T, where she also represented AT&T Labs and was responsible for all of AT&T’s arbitrations (including complex insurance matters), IP litigation, and all appeals in complex litigation and employment matters. Her work as a neutral is modeled on her admiration of the work of Judge Frank M. Coffin of the First Circuit Court of Appeals for whom she clerked following law school. From 2015 to 2017, she was the President of the Justice Marie L. Garibaldi ADR Inn of Court, the first ADR Inn in the country. She is also a past Chair of the NJSBA Dispute Resolution Section and a Co-Editor in Chief of the NYSBA’s journal, Dispute Resolution Lawyer. She is the 2014 recipient of the NJSBA’s Boskey Award for the ADR practitioner of the year. She has served as an arbitrator, including as chair, in complex commercial, telecom, biotech, patent and trademark licensing, partnership and development and family business disputes, and in matters involving the sales of businesses and securities claims. Ms. Kaster has served as a mediator in more than 200 matters, including matters involving hundreds of millions of dollars and long-running disputes. She was a founding member of the Executive Committee of the NJ Academy of Arbitrators and Mediators and is on the Roster of the National Academy of Distinguished Neutrals. She is on the Tech List of the Silicon Valley Arbitration and Mediation Center and is an arbitrator for the AAA; for the CPR on its Telecom Panel, E‑Discovery Panel, Technology Panel, New Jersey at Large ADR Panel, and Trademark Panel; and for FINRA. She is a hearing officer for National Arbitration and Mediation (NAM), a member of the Global Panel for the Center on Dispute Resolution (CEDR), and a mediator for the Global Mediation Exchange Center. She is CEDR accredited and an IMI Certified Mediator. She is a master mediator for the AAA. She has spoken and trained widely for the AAA/ICDR conferences, CCA, PLI, ABA Dispute Resolution Section annual meetings, NJSBA, NJAPM, NYSBA, and NJICLE. Ms. Kaster is listed as only one of three New Jersey mediators in Who’s Who Legal: Mediation (2016–2017). She is an Adjunct Professor of ADR at Seton Hall Law School and an organizer of the mediation program and training for the New Jersey Bankruptcy Courts. She mediates for the New Jersey and New York Commercial Courts and is a member of the New Jersey Supreme Court’s Committee on Complementary Dispute Resolution and its Advisory Committee on Mediator Standards. Ms. Kaster has published widely on both arbitration and mediation. She is a coauthor of the forthcoming chapter “Arbitrating Technology Cases: Considerations for Businesspeople and Advocates” in Harrie Samaras (Ed.), ADR Advocacy, Strategies, and Practices for Intellectual Property and Technology Cases (ABA 2017). She graduated from Tufts University with a BA and received her JD magna cum laude from Boston University Law School, where she received the Melville Bigelow award for “the greatest promise as a teacher and scholar of the law.” She is a member of the New York and New Jersey state bars and a proud Fellow of the College of Commercial Arbitrators.
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.
William B. Fitzgerald, Los Angeles, California
James P. Groton, Atlanta, Georgia
Carl F. Ingwalson, Jr., San Diego, California
Gerald F. Phillips, Los Angeles, California
Deborah Rothman, Los Angeles, California
Vivien B. Shelanski, New York, New York
Allison J. Snyder, Houston, Texas
Curtis E. von Kann, Washington, DC
John H. Wilkinson, New York, New York
Arbitrators’ goals in managing the prehearing process are (1) to work with counsel in devising fair and efficient procedures for the prehearing and hearing phases of the arbitration, (2) to monitor the parties’ compliance with those procedures, and (3) to resolve promptly any disputes or problems that might arise among counsel or that might delay the arbitration.
I. THE IMPORTANCE OF PREHEARING MANAGEMENT
From the time of appointment to the commencement of the hearing, arbitrators should take an active, hands-on approach to managing the prehearing process by working with counsel to establish and implement fair and efficient procedures and schedules that are appropriate to the particular case.
Like most things in life, getting an arbitration off on the right foot and keeping it on track are critical to a successful process. Although responsibility for managing arbitrations falls squarely on arbitrators, they should not attempt to perform this task without the involvement of counsel. Counsel, who know far more about the case than do the arbitrators and who often have considerable arbitration experience and insight, are essential partners in the undertaking. From their first contact with counsel, arbitrators should set a tone of professionalism, cooperation, and mutual respect. They should make clear that although the ultimate responsibility (and authority) for managing the arbitration rests with them, they intend to work with counsel in developing a process appropriate to the particular case and, in turn, expect counsel to act cooperatively and professionally with the arbitrators and each other.