Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 37

DELAYING TACTICS IN ARBITRATION

Alain Frécon

I. Introduction

No one likes it when a party uses delaying tactics to stall the normal
course of an arbitration, whether it is an ad hoc (i.e., self-administered)
or an administered proceeding.1 It is generally assumed that the
respondent is the most likely party to seek to delay the arbitration,
arguably because it would benefit from a postponement of the outcome.
However, experience teaches that this is not the exclusive privilege of
respondents. Claimants have reasons of their own to instigate delay.
Since arbitration is a voluntary process created by the parties for their
own benefit, there is little doubt that one or both parties can exert enough
control over the process to slow it down. A party may have a variety of
reasons for doing so.

Fortunately, delaying tactics are rarely abused to the point of totally
defeating the arbitration process. There are several reasons for this. First,
parties generally do not want to increase the costs of arbitration. Second,
their attorneys know that lengthy delays may cause confusion and prevent
the arbitrator from focusing on the crucial issues and facts of the case.
Third, arbitrators have the power to minimize delay through effective
management.2 Well-trained, experienced arbitrators are more likely to
have the skills necessary to curb a party’s inclination to delay the process.

This chapter examines purposeful delaying tactics and when they are
used. Then it addresses what arbitrators can do to minimize or eliminate
these delays.

II. What Is a Delaying Tactic?

A delaying tactic3 is any reason or excuse given to intentionally
delay an arbitration from proceeding. The usual purpose of delaying
tactics is to postpone the discussion of a particular topic or the resolution
of a particular issue or to confuse the arbitrator about the merits of the
case. Because delaying tactics are contrary to one of the goals of
arbitration (an expeditious resolution of the case),4 they tend to be
perceived negatively. By lengthening the process, they increase costs and
expenses and often antagonize the adversary. When delaying tactics are
used, there is usually little doubt of their happening. Most of the time, a
party who seeks a delay will file an unnecessary motion raising one or
more legal or procedural issues, or fail to comply with a deadline. Either
the arbitrator or a court, as the case may be, must rule on the motion or
address the noncompliance before the process can continue.

Often, delaying tactics are triggered after a sudden event, such as an
abruptly cancelled meeting, or the unexpected raising of a legal or
procedural issue. For purposes of this article, the discussion of delaying
tactics is divided into three broad categories: jurisdictional challenges,
discovery-related motions, and other procedural challenges.

A. Jurisdictional Challenges

Jurisdictional challenges usually focus on one or more of the
following: (1) the substantive law applicable to the dispute, (2) the law