Managing Depositions in Arbitration to Minimize Cost and Maximize Value - Chapter 6 - AAA Handbook on Commercial Arbitration, Third Edition
Stephen J. O’Neil is a Senior Litigation Partner in the Chicago office of K&L Gates, LLP and co-practice group leader for the firm’s Commercial Disputes Practice Group. He is also a member of the AAA Commercial Panel of arbitrators.
MANAGING DEPOSITIONS IN ARBITRATION TO MINIMIZE COST AND MAXIMIZE VALUE
Stephen J. O’Neil
In recent years, the American Arbitration Association (AAA) has reaffirmed its commitment to efficiency in the arbitration process. Faster disposition at lower cost must continue to be the principal differentiator of arbitration as an alternative to litigation. As others (including the drafters of the recent amendments to the AAA Commercial Arbitration Rules) have noted, the importation of a litigation mindset has resulted in a slow but steady encroachment of litigation procedures into the arbitration process. (See Section P-1(b) of AAA Commercial Arbitration Rules, Preliminary Hearing Procedures). While there are many features of litigation practice that have increased the cost and duration of arbitration cases, broad discovery and motion practice are most often cited. This article will not address the full range of the problem; for that, see Muscular Arbitration and Arbitrators Self-Management Can Make Arbitration Faster and More Economical (Dispute Res. Jrnl. Vol. 67, No. 4). Instead, this article will focus on deposition practice, a cause of unnecessary cost and delay in many cases.
To be sure, depositions are justified in some arbitrations. Commercial arbitration may involve very high stakes or high levels of factual complexity. In the exceptional case, a party may not be able to obtain access to information needed to present its claims or defenses without depositions. But where a decision has been made to allow depositions in an appropriate case, that decision should just be the first step in managing the process. When depositions are justified, there are techniques available to the arbitrator to maximize the value of deposition time and minimize deposition cost. With one exception, the techniques described below are not new and are already used by many experienced arbitrators.