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

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Arbitrators’ main goals during the pre-hearing process should be (1) to work with counsel in devising fair and efficient procedures for the pre-hearing and hearing phases of the arbitration, (2) to monitor the parties’ compliance with those procedures, and (3) to resolve very promptly any disputes or problems that arise among counsel and to make sure the merits hearing is not delayed.

I.            THE IMPORTANCE OF PRE-HEARING CASE MANAGEMENT

Arbitrators should take an active, hands-on approach throughout the pre-hearing process. From their first contact with counsel, arbitrators should set a tone of professionalism, cooperation, and mutual respect. Arbitrators should make clear that, although they are in charge of the arbitration, they intend to work with counsel in developing a process appropriate to the particular case and, in turn, they expect and will insist that counsel act cooperatively and professionally with the arbitrators and each other. Whenever possible, arbitrators should try to obtain agreement from all parties concerning the procedures and schedule that will govern the arbitration. The prospects for obtaining agreement are greatly enhanced when arbitrators lead by example. For instance, arbitrators should be punctual and well prepared for all conferences and hearings, and should make clear they expect the same from counsel and the parties’ representatives.

As they customize procedures and set the schedule for the arbitration, arbitrators need to bear in mind the arbitration agreement and applicable institutional provider rules. Most arbitration agreements do not contain detailed procedures for the arbitration. Even when they do provide some structure, the arbitrator(s) can always ask the parties to modify procedures that appear unworkable or unwise. Although the arbitration rules contain some provisions concerning the pre-hearing process and the merits hearing, they leave arbitrators great flexibility to tailor the schedule, deadlines, and procedures for preparing the arbitration for hearing. Arbitrators and parties can agree to whatever procedures and timetable they think best for a particular arbitration. In the absence of agreement, arbitrators have the authority, even without party agreement, to fix the final procedures.

Normally, the arbitrators’ first opportunity to shape the pre-hearing process comes at the preliminary hearing (or, as referred to in certain provider rules, the preliminary management hearing, the preliminary conference, or the initial pre-hearing conference). See AAA Rule R-22; AAA Const. Rule R-23;  JAMS Rule 16, CPR Admin. Rule 9. The arbitrators’ actions in convening, conducting, and memorializing that hearing play a major role in making sure the arbitration runs smoothly and efficiently.

II.           CONVENING THE PRELIMINARY HEARING

A.           Time of the Preliminary Hearing

The preliminary hearing should be held as soon after the arbitrators’ appointment as possible, consistent with the parties’ need to prepare and any unusual scheduling problems. When substantial time passes between the arbitrators’ appointment and their first contact with counsel, the parties can come to expect the arbitrators to proceed at a relatively leisurely pace. Lacking central direction, parties may develop disputes that even a small amount of guidance would have avoided. To avoid these unnecessary disagreements, arbitrators should ensure that the parties receive notice promptly, preferably within a week to two weeks of their appointment at most, concerning scheduling a preliminary hearing. See generally AAA Rule R-22(a); JAMS Rule 16. Typically, the provider (or in a non-administered proceeding, the arbitrators) will determine the availability of counsel, the arbitrator(s), and the provider’s representative for the preliminary hearing. Notice of the hearing should be issued quickly, and the hearing should be convened promptly.