Arbitration is widely utilized in a broad range of circumstances and contexts and enjoys exceptionally strong support by American court decisions. A general goal of arbitration is to achieve fair, just and appropriate resolutions to disputes with speed, efficiency and economy. Some of the desired hallmarks of arbitration include party selection of their decision maker, a private forum, less formality, a process unburdened by legalistic rules and procedures and a process more easily understood by persons without requiring formal legal training or education.

Arbitration today is largely, though not exclusively, a consensual process. It can be shaped and customized to suit situation specific circumstances and relationships.

Existing arbitration laws include the Federal Arbitration Act (FAA), the 1955 version of the “Uniform Arbitration Act” adopted by most states and the currently pending proposed Revised Uniform Arbitration Act (RUAA) that has been adopted by a minority of states (adopted by 12 states as of August 31, 2005). Given the increased usage and application of arbitration to a broad range of small and large cases, both simple and complex, natural tensions and inherent opportunities are presented to shape the process for a party’s perceived advantage and for the perceived disadvantage of other parties. Such tensions and opportunities raise the potential for abusive use of the process and invites consumer and legislative backlash seeking to impose constraints upon the arbitration process.

Within this context, a challenge is presented for arbitrators, advocates and supporters of the arbitration process to preserve, adapt and protect the arbitration process as an efficient, cost-effective and user-friendly process that meets the needs of and remains fair to users of the process. The intention of this outline is to present a checklist of ideas for consideration by arbitrators, advocates and parties that may be helpful and useful to preserve, ensure and achieve the perceived benefits of speed, ease, efficiency and economy associated with the use of the arbitration process. Some of the ideas are only needed or suitable for the large, multiple party and multiple issue case. The list is not intended to present ideas for use in all cases but only where they have utility and value to the parties and the specific case involved.

Encourage accessibility and flexibility of the arbitration process.

Arbitrators should be readily and quickly accessible. Be open to tailoring or customizing the arbitration process to fit the needs of the parties. As stated by Prof. Frank Sanders, the challenge is to work together to “fit the forum to the fuss”. Telephone conference calls involving party representatives and the arbitrator(s) should be easily available and quickly set up. Even in cases which are administered by a neutral agency or where there is an available case manager, encourage agreement with the parties that administrative and scheduling matters can be done by direct communication to the arbitrator’s office for the purposes of establishing and coordinating an immediate or prompt conference call including all the parties or their representatives.

Preliminary conferences.

Shape and organize the arbitration process. Invite discussions of ways to simplify, streamline and accelerate the schedule. Arbitrators should encourage them and be easily accessible and advocates should appreciate the availability of utilizing pre-arbitration conferences to address any procedural matter, substantive issue or idea that may foster a more efficient and economical arbitration process.

Create clarity and develop focus in the case. It is very helpful to define the issues as early as possible. Schedule the early statement and clarification of claims, counterclaims, defenses. Many times, a case has one or a few specific issues that are central or crucial or in contention. Sift out the major issues. As needed, review facts not in dispute and those remaining in dispute.

Identify needed information. Encourage voluntary and cooperative production and exchange of documents and records on a reasonable and prompt basis and with a minimum of procedural and documentary formality as possible. Identify records needed from third party sources. Issue subpoenas in aid of early production of records. Early production of documents will assist in better assessments and evaluation of issues and cases as well as aid in the elimination or settlement of issues and the case as a whole.

Establish an overall spirit or tenor for the arbitration. Arbitrators can articulate and establish the desired atmosphere and expectation of civility and cooperation in the process. The goal is to keep the overall arbitration process fair, efficient and user-friendly and to achieve the prompt and timely resolution of issues and the case. Honor the needs of substance over form and resist making the arbitration process overly adversarial and legalistic.

Communication protocols.

Encourage agreement on communications procedures that are efficient and quick. Determine if the parties are comfortable with agreeing to use of email communications in lieu of fax or hard copy written communications. Determine whether email is to be limited to administrative and scheduling matters and/or to any formal memoranda, arguments or motions. Encourage the parties to only send communications or copies to the arbitrator that relate to or seek responsive action from the arbitrator. All communications to the arbitrator must of course simultaneously be provided to the other party(ies). Where emails are not sufficient, encourage acceptability of facsimile communications in lieu of hard copies by mail or delivery.

Pre-Hearing Management matters.

For cases with multiple parties and multiple issues, consider sequencing and grouping issues for early disposition and hearing. Preliminary, gateway or determinative legal issues can be addressed early. Especially if doing so will help to save the parties work and reduce the scope of further proceedings. Consider bifurcation or phasing of issues for hearing in any logical or efficient manner. Example, in a construction defect and design case, bifurcate causation and liability to be addressed first, then address appropriate remedy and damages thereafter. Consider dividing issues for separate consideration by identified issue or by grouping parties involved in design, owner involvement or construction and subcontract issues in different phases.

Consider use of joint investigation of facts by a neutral fact-finder. Consider whether parties are willing to appoint someone to be a neutral fact-finder. Use of a neutral fact-finder may minimize or possibly avoid the need for each party to engage separate consultants or experts to review and summarize pertinent information from voluminous records. Example: In a construction deficiency case, a single architect, engineer or construction manager serving as a neutral fact-finder can review the pertinent records to recreate the history or critical construction sequence or evaluate adequacy of staffing a specific scope of work. In a partnership accounting case, a single accountant can perform a neutral accounting review. The fact-finder should be permitted access to all pertinent records. The scope of the fact-finder's review should be clear and focused. The goal is to take issues or subjects that would be laborious or time consuming to establish and present in a traditional arbitration hearing process and eliminate the contentious formality of questioning multiple witnesses. The fact-finder's report and conclusions should be provided to the parties in advance of any hearing. Use of a neutral fact-finder will minimize issues and uncertainties concerning bias.

Consider use of a single neutral expert. One of the recognized weaknesses of an adversary system or arbitration or litigation is the high cost and incredible waste engendered by the battle of “hired gun” technical experts. Parties can sometimes agree upon the selection of an acceptable neutral expert with the costs to be shared equally by the parties. If the parties cannot agree, they may suggest names and the arbitrator(s) can select. For example, in a partnership accounting dispute, a single neutral and mutually trusted accountant can review the partnership accounting records to make findings, conclusions or recommendations. If a technical interpretation is at issue in the case (such as what are the applicable requirements of Generally Accepted Accounting Principles (GAAP)), the neutral expert can provide the evaluation. The parties can thus avoid a costly "battle of experts" in the case. The need for each party to retain and pay for separate expert witnesses is hopefully eliminated. Also, issues of credibility or bias of expert witnesses who are suspected of being paid advocate witnesses is then minimized.

Just prior to the hearing, use a pre-arbitration conference call to review and set the daily schedule. Identify the anticipated sequence and order of witnesses with a good faith obligation to identify the anticipated schedule of witnesses at least by the day or several days before their anticipated testimony at the hearing to permit the other parties to organize their exhibits and questions for the witness.

Exhibits and evidence.

Documentary evidence: Dispense with the formality of litigation practice to identify, authenticate and offer exhibits. Propose a protocol that all document exhibits are deemed admitted unless a party raises a specific concern or objection to specific exhibits. Parties are free to argue merits, applicability and reliability.

Parties should be encouraged to exchange lists between themselves of their desired exhibits. Joint exhibits are submitted to the arbitrator to avoid duplication. Clarify the understanding of the parties that there is a good faith expectation that, except for impeachment and rebuttal purposes, all exhibits that a party anticipates or intends to use in support or defense of a claim will be submitted prior to the commencement of the arbitration hearing.

Exhibits should be identified with numbers or letters or in combination. They should be bound and tabbed for ease of access. Internal pages of voluminous documents should also be numbered for ease of reference. In a multiple issue case, parties can group and identify exhibits pertinent to each specific issue by assigning a different letter designation to each major issue and a number for the document relating to that issue. Example: Exhibits B-1 through B-14 relate to issue B and C-1 through C-5 pertain to a different issue C. As new or additional documents are encountered and determined to be pertinent to issue B, they can be added as B-15, the next in order. This will help the arbitrator(s) by having the documents or exhibits relevant to each issue organized in one place and easy to access and review.

Inform the parties that the flexibility and comparative informality of the arbitration process can accommodate the use and consideration of testimony by speaker telephone, written affidavit or statement, deposition transcript, transcript of prior testimony, internet video camera and the like.

Encourage the use of written outline summaries with references to key exhibits or select portions thereof. Require written summaries to be exchanged between the parties in advance of any hearing with the arbitrator(s) to give opportunity to all parties to supplement or object. Allow a designated party representative or advocate to outline or present summaries by presentation instead of through an adversarial question and answer format. Review with the parties what points or issues are truly in contention. All other points not in contention can be accepted by consensus. At that point, further attention can be focused upon those items that remain in contention.

Request the parties to provide the arbitrator with a chronology of key events and/or key documents, preferably jointly submitted.

Request the parties to provide the arbitrator with an organization chart, roster or list of key people in organizations or who are referenced in testimony documents with brief description of their tile, position or role.

Request where appropriate a copies of floor plans, diagrams or photos of key scenes. Site visits before the submission or presentation of evidence can be very helpful to acquaint the arbitrator of the pertinent settings and issues.

Consider the use of written direct testimony with cross-examination. Sometimes, parties may be willing to have all direct testimony submitted in writing to the arbitrator and other parties before the hearing. At the hearing, witnesses can be offered for purposes of cross-examination and redirect examination. This can help to focus the presentation of the direct testimony as well as shorten the hearing time.

Consider witness conferencing. With multiple lay or fact witnesses, it may be advantageous to have all witnesses pertinent to common topics or issues present at the same time to discuss the pertinent facts. Witnesses can fill in and supplement information on the spot. Some feel that witnesses are more likely to be truthful when giving evidence in the presence of other witnesses. Determine what is generally agreed upon by consensus and identify what is legitimately disputed. Then individual witnesses can be queried as to their specific testimony on the points in contention.

Subpoenas.

Minimize need for subpoenas, where possible. Invite agreement that parties will voluntarily produce those witnesses that another party desires to call who are employees of or cooperating and working with a party. Where subpoenas are needed to summon the attendance of witnesses, copies of subpoenas are to be provided to opposing parties or their advocates contemporaneous with service of the subpoena upon the subpoenaed witness or party. Service of subpoenas are to be effected at least ___ days before the scheduled or desired date(s) of appearance in order that witnesses can make arrangements to attend and opposing parties have an opportunity to raise objections to a subpoena such as to the scope of documents sought by a subpoena duces tecum.

In a case involving a panel of arbitrators, consider designating one of the arbitrators to serve as the designated discovery arbitrator. Invite an agreement that any single arbitrator may sign and issue subpoenas. Parties can be asked to agree that facsimile copies of the arbitrator’s signed subpoenas may be used and served for all purposes to the same extent as an original signed copy of the subpoena.

Expert Witnesses.

Establish agreed ground rules for identification and disclosure of experts and their field of expertise and for designation of counter-experts. Establish if written expert reports will be prepared or required. Provide for early exchange of reports. Establish clear ground rules requiring the expert report to contain all opinions and the bases for such opinions intended to be presented in the case. Establish that the reports must reflect the theories and opinions of the witness after all investigation and testing has been done. Establish whether experts will then be limited only to the opinions contained in the reports.

Pre-qualify experts before the hearing, to the extent possible. Exchange resumes before hand. Parties can be encouraged to stipulate that proffered experts may testify as experts in the offered field, leaving it to the arbitrator to determine the appropriate weight and significance of their expert testimony. The goal is to not waste expensive hearing time (with party representatives, paid advocates, expert witnesses, consultants and one or more arbitrators and possibly, a court reporter.) Where needed, the parties can utilize a formal voir dire process to examine issues of expert qualification.

Get expert reports and opinions distributed before the hearing. Determine areas of non-disputed information. Identify and focus on issues in dispute and credibility.

Consider having the expert’s direct testimony submitted in writing and exchanged well in advance of the hearing. The arbitrator can review the written direct testimony before any hearing. Then at the hearing, the expert witness is offered for cross examination, redirect, etc.

Where multiple expert witnesses are involved and will be testifying, consider whether a roundtable discussion or presentation of the experts' opinions would be more efficient than the traditional question and answer, examination and cross-examination format. The use of an experts roundtable can be especially useful and helpful to collect the testimonies of multiple witnesses pertinent to a subject and to test and understand the critical differences that may exist. It also significantly reduces the study time needed by the arbitrator to review, relate and make sense of divergent technical and complicated testimony.

One approach for conducting the expert roundtable, suggested by Arbitrator James R. Madison, is to have the experts begin with a (relatively) brief narrative describing what each has done by way of study and what the opinion of each is. This can be followed by, in effect, a discussion between them clarifying where they agree and where they disagree. The next stage is follow-up questions from the lawyers and then the arbitrator with the lawyers having the last opportunity to ask final questions.

Another approach to the expert roundtable works as follows:

1. Prior to gathering all experts together at the hearing, resumes and information concerning the experience of the expert witness with similar work or issues is exchanged and provided to the arbitrator. Ask the parties if they are willing to submit to the arbitrator the evaluation of the experts' experience and credibility based upon this exchange and presentation of information without having to utilize hearing time to go through what can be lengthy voir dire.

2. If voir dire is desired, arrangements can be made to have voir dire of individual expert witnesses done by conference telephone interview. Oftentimes, expert witnesses must travel significant distances to be available to testify. Where multiple expert witnesses are involved, their attendance at hearings involves great expense. The goal is to take care of any and all matters before the roundtable hearing that do not require the presence or attention of all of the expert witnesses involved. Use of the formal hearing time should be limited and concentrated on matters that go to the issues at controversy in the case.

3. The key issues and elements of claims or defenses should be identified and listed. The purpose and need for the expert opinion testimony should be clear. Written expert reports should be submitted and exchanged in advance to permit review by the other parties, their experts and the arbitrator prior to the hearing and /or roundtable discussion.

4. At the hearing with all involved expert witnesses present and sworn, it is suggested that the arbitrator(s) begin the interviewing of the experts. Where the arbitrator takes the lead in asking questions and interviewing the witnesses, it is often quicker and more focused than the traditional adversarial examination and cross-examination format. The parties and their advocates have less need to guess what the arbitrator is thinking or what the arbitrator wants to know. The parties can concentrate on supplementing the inquiry with additional information or examination that the party believes is desirable and necessary for presentation to the arbitrator. One of the principal advantages of the roundtable interview format is that the opinions of all of the experts can be expressed at one time. All pertinent opinions can be presented and focused on an issue by issue basis. It is helpful to have a chart of questions and issues prepared beforehand. As the experts provide their opinions, their testimony can be captured in context. Experts can respond immediately to the contentions and opinions expressed. Opinions can be tested and clarified. Hypotheticals can be framed and revised quickly. The arbitrator can gain the benefit of the expertise of all the experts in framing and clarifying issues. Many times there are significant areas of consensus among the experts. Those can be identified and noted. The inquiry can then move on to areas or issues where the experts disagree. Having a prepared chart of issues permits the arbitrator to capture the pertinent testimony, highlight the areas of contention and collect in one place the reasons and rationale of the different witnesses.

5. After the arbitrator's questions have been asked, the parties should have the opportunity to ask questions as appropriate. The expert witnesses can be encouraged to comment upon and to ask questions of each other and be afforded an opportunity to provide additional information they believe to be helpful or pertinent.

6. It is helpful to divide the roundtable inquiry into clearly defined phases. For example, discuss causation, then liability followed by damages. Complete the round of inquiry with the arbitrator's questions and party questions on one phase before moving on to the next phase.

“Chess clock” arbitration.

Sometimes, parties are willing to agree to divide an agreed quantity of time in order to complete the case within an agreed limited number of days designated for the hearing. A party’s allotment of time is used for the party’s direct examination of that party’s witnesses and for cross-examination of the other party’s witnesses. The agreed limit to a party’s available time encourages parties to be focused and efficient in the presentation of evidence through their witnesses and the cross-examination of adverse witnesses.

The tallying of time used can be done by the arbitrator, a court reporter or some other designated person. It is recommended that the running tally be reviewed with the parties regularly, perhaps daily, to make sure there is general agreement as to the amount of time used and remaining.

Some portion of the available time should be allotted to cover unexpected eventualities and delays that may occur during the course of the hearing. Experienced arbitrators recommend that limiting the parties to a total amount of time to present their cases should only be by agreement of the parties and any such agreement should be adequately documented and confirmed by the advocates as well as the involved parties who are effectively modifying their agreement to arbitrate by agreeing to the “chess clock” process. Some arbitrators recommend that the arbitrator retain a degree of discretion to allow parties, upon making a motion, to have some additional time if it is shown to be required for the party to fully and fairly present their case in arbitration. The author acknowledges with appreciation the recommendations gleaned from many experienced arbitrators, including Judith Ittig, John R. Phillips, Charles Rumbaugh, Michael J. Bayard and Curtis von Kann, who shared their “chess clock” arbitration experiences on a recent national mediation and arbitration list-serve discussion.

Arbitration remains a very valuable, useful and flexible dispute resolution process. Thoughtful use and adaptation of the arbitration process can preserve and protect arbitration as an efficient, cost-effective and user-friendly private procedure for the fair and prompt resolution of a wide range of civil and commercial disputes.