Evidence in Arbitration: A Guide for Litigators - Chapter 12 - AAA Handbook on Commercial Arbitration, Third Edition
Alfred G. Feliu
Alfred G. Feliu is a Partner at Vandenberg & Feliu in New York City. He serves on the American Association’s Employment, Commercial, and Class Action Panels. Feliu received a BA and JD from Columbia University. He has authored or co-authored four books, most recently ADR in Employment Law (Bloomberg BNA Books), 2015.
Litigators who dabble in arbitration are often frustrated by the informality of the process. The notion that discovery in arbitration is a privilege—and not a right—subject to the arbitrator’s discretion, is an affront not to be tolerated. Hearsay allowed? Sacrilege.
Arbitrators, in contrast, are bemused by litigators who approach arbitration as a shadow judicial forum with the expectation that arbitrators are to be impressed by frequent and expert citations to court rules such as the Federal Rules of Evidence (“FRE”). The fact that formal rules of evidence do not apply in arbitration (unless the parties expressly mandate it, which is rare) little deters the transplanted trial lawyer.
Do formal rules of evidence have a place in the arbitration setting? The answer, as is often the case in the arbitration world, is that in the absence of a contractual mandate it depends on the arbitrator. As provided for in Rule 30 of the Employment Arbitration Rules and Rule 34(b) of the Commercial Rules of the American Arbitration Association, the arbitrator determines the relevance and materiality of the evidence offered. Both sets of rules also provide that conformity to legal rules of evidence shall not be necessary.”
The fact that rules of evidence do not expressly apply in most arbitrations is not to say that basic evidentiary principles embodied in such rules do not have a place in arbitration.