The Use of Dispositive Motions in Arbitration - Chapter 23 - AAA Handbook on Arbitration Practice - Second Edition
Author(s):
Alfred G. Ferris
W. Lee Biddle
Page Count:
16 pages
Media Description:
1 PDF Download
Published:
December, 2015
Author Detail:
Alfred G. Ferris is a full-time neutral and a commercial, construction and employment arbitrator and mediator. He serves on the American Arbitration Association's Large, Complex Case Panel. He is of counsel with the San Diego law firm of Ferris & Britton APC, of which he was a founding partner.
W. Lee Biddle is an associate with the firm, practicing in the area of business litigation.
Description:
Originally from:
AAA Handbook on Arbitration Practice - Second Edition
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CHAPTER 23
THE USE OF DISPOSITIVE MOTIONS IN
ARBITRATION
Alfred G. Ferris and W. Lee Biddle
I. Introduction
This article addresses a basic arbitration practice question: what role
do dispositive motions have in arbitration? For purposes of this article,
dispositive motions are motions that would be considered dispositive by a
court, such as a motion for summary judgment, a motion to dismiss for
failure to state a claim, a motion for judgment on the pleadings, and a
motion to strike particular claims or defenses. In arbitration, these motions
are considered under the general rubric of “summary dispositions” or
“partial summary dispositions.”
Dispositive motions in litigation frequently provide the most
efficient means of limiting the scope of the litigation or even ending it,
saving the client’s and the court’s resources and reducing or eliminating
the risk of an adverse judgment. The same considerations could apply in
arbitration. The reason is that not every claim or defense brought in
arbitration is sufficient to require a hearing on the merits. A claim made
in arbitration could be just as ripe for disposition without a full
evidentiary hearing as a claim brought in civil court. Thus, in some
situations, it could be appropriate for a party to make, and the arbitrator
to hear, a dispositive motion. Under these circumstances, hearing such a
motion may facilitate the arbitrator’s discharge of the duty that he or she
“shall conduct the proceedings with a view to expediting the resolution
of the dispute[.]”1
There is little reason, however, to bring a dispositive motion in
arbitration if resources saved by avoiding a hearing on the merits will
have to be used before a court to defend an arbitral ruling granting the
motion. So this article first discusses the legal framework surrounding
dispositive motions, including how courts view such motions and what
the law and institutional arbitration rules say about them. Next, the
article discusses how the differences between civil courts and arbitration
could have an impact on the decision to bring a dispositive motion and
what kind of motion might be appropriate.
II. Statutory Authority
Two issues are central to a party contemplating a dispositive motion:
first, whether the arbitrator has authority to grant such a motion and
second, how a court would assess the motion on judicial review. Let’s
look at each in turn.
The Federal Arbitration Act (FAA), which was enacted in 1925, is
silent on the issue of dispositive motions, as it is on all issues of arbitration
management. So is the 1955 Uniform Arbitration Act (UAA), which was
enacted in 49 states. The UAA seemed to require the arbitrator to determine
all claims in an evidentiary hearing. Article 5 states that “the arbitrators
shall appoint a time and place for the hearing” and that “[t]he parties are
entitled to be heard, to present evidence material to the controversy and to
cross-examine witnesses appearing at the hearing.” What was meant by a
“hearing” and the method of presentation of “evidence” left a vast area for
arbitral discretion, subject to limited judicial review.
The language in the UAA led some commentators to believe that
dispositive motions were not permitted in arbitration.2 But as a few courts
had occasion to review the propriety of a dispositive motion while
considering a petition to vacate an award, it became increasingly clear that
arbitrators had such authority. It also became obvious that it might be
appropriate for arbitration law to make a more explicit statement about the
power of the arbitrator to manage this aspect of the arbitration process.
This issue was addressed in 2000, when the National Conference of
Commissioners on Uniform State Laws released the Revised Uniform