Michael T. Callahan is a vice president of Wagner-Hohns-lnglis, Inc., a consulting firm for the construction industry in Kansas City, Missouri. He is a member of the American Arbitration Association's Commercial Panel of Arbitrators.
Arbitrator power to permit discovery varies from state to state. Some statutes permit depositions to be taken for both evidentiary and discovery purposes, whereas the Uniform Arbitration Act limits depositions for use as evidence to cases in which witnesses are not subject to subpoena or are otherwise unavailable. Arbitration statutes of most states give arbitrators the power to issue subpoenas for witness attendance. Absence of specific reference to any type of discovery in the statute, however, may not preclude the arbitrator from granting some types of discovery requests seemingly outside the statute that will contribute to the speedy and just resolution of the dispute.
The author argues that discovery rules from the legal system should not be imposed on arbitration and that requests for information should be backed by reason and logic. The most effective requests for discovery in construction arbitration, the author contends, will be those that can be demonstrated to be necessary for a speedy and equitable resolution of the dispute.