Originally from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, Fifth Edition

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Arbitrators should have three overriding goals for the merits hearing. The hearing should (1) provide each party a fair opportunity to present its evidence and argument; (2) provide the arbitrators with the information they need to properly resolve the issues presented; and (3) ensure that the hearing process is efficient and expeditious.

I.           DESIGNING AN APPROPRIATE PROCESS

Arbitrators should establish and then implement hearing procedures that are fair, appropriate to the case, and to the extent reasonably possible, acceptable to all parties. The rules of most arbitral institutions give arbitrators broad discretion to manage arbitration hearings. For example, Rule 9.1 of the CPR Non-Administered and Administered Rules provides that “[s]ubject to these Rules, the Tribunal may conduct the arbitration in such manner as it shall deem appropriate.” See also 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 to be reasonable and appropriate to do so.”). AAA Rule R-33(a) confers discretion on the arbitrators not only to vary the usual order of proof but also the process by which witnesses are questioned as long as fundamental fairness is maintained. AAA arbitrators have discretion over the presentation of evidence, for instance, but they must be sure that “the parties are treated with equality and … each party has the right to be heard and is given a fair opportunity to present its case.”

Courts seldom disturb arbitration awards because of the way arbitrators used their discretion over arbitration procedures. As a practical matter, arbitrators may conduct hearings as they think best, subject to the proviso that they comply with the relevant provisions of the parties’ arbitration agreement and the governing rules and do not create unreasonable barriers to the submission of pertinent and material evidence. In recent years, the most prominent U.S. arbitration institutions have all engaged in efforts to provide more guidance on how arbitration proceedings can be managed more efficiently. For example, the CPR and JAMS websites contain a variety of protocols and guidelines designed to streamline aspects of the hearing process, and the AAA Rules reflect modern practice by expressly authorizing the presentation of evidence by means “other than an in-person presentation.” See AAA Rule R-33(c); section VIII below.

Arbitrators should work with counsel to develop procedures that are just, efficient, and best suited to the particular dispute. Usually an early procedural order, most often a first scheduling or case management order, will address the merits hearing’s basic structure, including the duration of pre-hearing information exchange, when the merits hearing will begin, how long it will last, deadlines for identifying witnesses and submitting exhibits, how exhibits will be marked, when and how objections to exhibits are to be made, and the evidentiary standards to be applied.  However, it is not unusual to defer addressing a number of other aspects of how the hearing will be handled—for example, whether the parties want to make opening or closing statements, whether witnesses will be sequestered, whether demonstrative exhibits will be exchanged in advance, and whether some (or all) witnesses will appear remotely by videoconference—until closer to the merits hearing.

Matters that are often left to a later order include:

•           the hearing venue (if not previously identified),

•           hours of hearing sessions,

•           desirability and length of opening statements,

•           sequestration of witnesses,

•           whether the scope of cross-examination is limited to the scope of the direct examination, and regardless of that choice, whether the scope of redirect is limited to the scope of cross-examination,

•           restrictions on counsel’s ability to communicate with witnesses during cross-examination, and whether counsel calling a witness may meet with the witness for a few minutes following cross-examination to prepare for redirect examination (potentially rendering redirect examination more efficient and productive),

•           the examination of expert witnesses, including possible presentations in lieu of traditional direct testimony and possible “hot-tubbing,”

•           exchange and use of demonstrative exhibits,

•           limitations, if any, on impeachment exhibits,

•           possible variations in the traditional order of proof warranted by specific circumstances raised by the claims and/or defenses,

•           allocation of hearing time between the parties, including possible use of a chess clock,

•           protective measures relating to public health issues if appropriate,

•           dress code, and

•           other logistical and organizational matters.

Given that counsel generally select the arbitrators or at least heavily influence their clients’ selections and because of most arbitrators are chosen in part for their experience in the arbitration process, arbitrators should lead the effort to arrive at appropriate procedures at the hearing itself by discussing their thoughts on various techniques with counsel. The best, smoothest pre-hearing schedules and hearing plans are consensual because building a collaborative relationship requires arbitrators to engage counsel in the process and to seriously consider their suggestions.