Maximizing Arbitration Efficiency and Effectiveness: Don t Treat Your Arbitration Like the Courtroom

Transcription

1 Maximizing Arbitration Efficiency and Effectiveness: Don t Treat Your Arbitration Like the Courtroom Keith Clouse Alyson Brown Cecilia Morgan Karen Willcutts Dallas Bar Association Labor & Employment Section October 17, 2011

2 Panelists Keith Clouse, Clouse Dunn LLP AAA Arbitrator/Mediator Alyson Brown, Clouse Dunn LLP AAA Arbitrator/Mediator Cecilia Morgan, JAMS Arbitrator/Mediator Karen Willcutts, JAMS Arbitrator/Mediator Dallas County Civil Associate Judge,

3 From Mike Lynch Cartoons; originally appeared in Reader s Digest.

4 Managing Costs Parties Can Select Strategies to Impact Costs at Every Stage of Arbitration: Arbitrator Selection Management Conference Discovery Motion Practice Briefing Award

5 Arbitration Overview Arbitration boundaries: The parties arbitration agreement Applicable statutes: Federal Arbitration Act (9 USC 1-16) Texas Arbitration Act (TCPRC Chapter 171) Admin. agency rules & procedures (e.g. AAA/JAMS) The arbitrator s authority derives primarily from the contractual agreement of the parties draft wisely! Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 2011)

6 Arbitration vs. Litigation Major differences between arbitration & traditional judicial litigation: Faster (usually ideally!) Somewhat less formal No juries Limited discovery (or sometimes no discovery) Rules of evidence inapplicable Fewer procedural requirements Very broad arbitrator discretion Variable form of award, usually at litigants option Very limited grounds for appeal on substantive grounds

7 Arbitrator Selection Arbitrator selection / appointment process: Party appointed panels Appointment from list(s) Party agreement $$$ Single Arbitrator vs. 3-Person Panel Arbitrator disclosure requirements ASAP - Provide list of parties, counsel, related entities, interested persons, likely witnesses Ongoing supplementation & disclosure obligation Parties and arbitrator Parties failure to provide information can result in delays, reappointment

8 Management Conference Parties can design arbitration to save costs while achieving fully developed case Involve corporate representatives/in-house counsel Scheduling Order Discovery - $$$ Limit Depositions Motions - $$$ Motion Practice limits Document Exchange $$$ Informal, voluntary Joint Exhibit Lists Form of Award $$$ don t require findings of fact/conclusions of law

9 Discovery Don t treat arbitration like traditional litigation Informal, voluntary disclosures and document exchange Limit number of requests, interrogatories Depositions limit number, duration Shorten response deadlines Electronic discovery Address discovery disputes quickly

10 Motion Practice Dispositive motions use sparingly Clear questions of law (e.g., statute of limitations) Possible grounds to overturn award under FAA failure to consider all relevant evidence Significantly increases arbitrator s study time and parties $$$

11 Briefing Address key points only avoid kitchen sink briefs If you ve briefed it once, resist the temptation to brief it again Attach key cases highlighted Replies, surreplies enough is enough Shorter is better the more you write, the more it costs

12 Award Form of award: simple, reasoned, detailed Findings of Fact/Conclusions Assist the arbitrator: timeline cast of characters key documents concise statement of claims and relief requested

13 Ethical Challenges Pro se claimants Spoliation Civility/Professionalism Informal doesn t mean ex parte Conflicts multiple party representation

14 If I Could Tell Parties to Do or Don t Do One Thing in Arbitration. Avoid Repetition cumulative witnesses, documents, multiple briefs Be Civil Organize Exhibits key docs, avoid duplicates Provide Marked Deposition Excerpts not the full deposition Tell the arbitrator clearly what you re asking for

15 Trends/Legislative Activity Pending legislation Arbitration Fairness Act reintroduced May 2011 (Sen. Franken) Attacks on arbitration still out there Legislative Education slowly working Criticism of Arbitration cost, time. It s in the parties control!

16 In fighting over the little problems, we often lose sight of the big ones! --Danny Patel Published in Dispute Resolution Magazine, Summer 2010, by the American Bar Association.

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