Controlling Time and Cost in Arbitration: Actively Managing the Process and “Right-Sizing” Discovery - Chapter 31 - AAA Handbook on Construction Arbitration and ADR - Third Edition
Albert Bates Jr.
Albert Bates is the Vice Chair of the Construction Group of Duane Morris, LLP. In addition to advising clients on many different construction issues, he serves as a mediator and arbitrator in domestic and international construction, commercial, and environmental disputes. Mr. Bates serves on the Board of Directors of the American Arbitration Association. He is a Fellow in the College of Commercial Arbitrators, an International Mediation Institute-certified mediator, and a Charter Member of the National Academy of Distinguished Neutrals.
The contractor filed a $500,000 claim against the owner for the unpaid contract balance and disputed change orders. The owner asserts that it is entitled to set-off the unpaid contract balance against the cost of repairing the contractor’s defective and incomplete work. Counsel representing each party is now participating in a preliminary hearing conference with the arbitrator. They advise the arbitrator that they have agreed to a discovery plan and a procedural schedule. The discovery plan contemplates an exchange of product documents, an exchange of all project e-mail in electronic format, and five depositions per party (limited to 35 hours for all depositions). The procedural schedule sets aside 10 days for the arbitration hearing, allowing each party no more than 30 hours to present their case, from opening statement to closing argument.
How should the arbitrator respond if he or she believes that all or part of the discovery plan is excessive and the schedule unworkable? Is it appropriate to reject the parties’ joint discovery plan and procedural schedule in whole or in part? Alternatively, must the arbitrator accept the plan and schedule in their entirety because arbitration is a creature of contract and the arbitrator has no authority to deviate from agreements of the parties?