The Hearing on the Merits - Chapter 10 - College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 3rd Edition
Henri C. Alvarez
William L. D. Barrett
Louis A. Craco
William B. Fitzgerald
James P. Groton
John J. McCauley
John A. Sherrill
Curtis E. von Kann
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The arbitrators’ goals with respect to the hearing on the merits are to (1) provide each party a fair opportunity to present its evidence and argument; (2) make the hearing as smooth, efficient, and expeditious as possible; and (3) provide arbitrators all the information they need to properly resolve the issues presented.
I. DESIGNING THE APPROPRIATE HEARING PROCESS
Arbitrators should use their broad discretion concerning management of the hearing to establish and carry out arrangements and procedures that are fair, appropriate to the case, and to the extent reasonably possible, acceptable to all parties.
Consistent with the common law, the rules of most arbitral institutions accord arbitrators broad discretion in managing arbitration hearings. See, e.g., CPR Ad Hoc Rule 9.1 and CPR Administered Rule 9.1 (“Subject to these Rules, the Tribunal may conduct the arbitration in such manner as it shall deem appropriate.”); JAMS Rule 22(a) (“The arbitrator will ordinarily conduct the arbitration hearing in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined reasonable and appropriate to do so.”); AAA R-Rule 32(b) (“The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.”). Courts seldom disturb arbitration awards for reasons relating to the hearing procedures utilized by arbitrators. As a practical matter, arbitrators generally are empowered to conduct hearings as they think best, subject only to the proviso that they comply with any relevant provisions in the parties’ arbitration agreement and the governing rules. In recent years, the most prominent U.S. arbitration institutions have all engaged in efforts to provide guidance to arbitrators regarding the many ways in which arbitration proceedings can be managed eficiently. For example, the CPR and JAMS websites (respectively found at www.cpradr.org and www.jamsadr.com) provide access to a variety of protocols and guidelines relating to the management of the hearing process and the recently revised AAA Rules now provide a detailed checklist of subjects for arbitrators to consider addressing as the preliminary hearing. See AAA Rule P-2.