Guidelines on Arbitration Hearings

In arbitration proceedings, the Chair guides the procedural issues. This article discusses the role of the Chair and provides guidance.

Mr. Robbins writes: Most procedural issues fall on the shoulders of the panel Chairperson. How that authority is exercised is often determinative of the outcome of a case, for the parties and the other arbitrators will look to the Chairperson for guidance. Resolution of all procedural issues should be memorialized in a Pre-Hearing Order following a conference with the parties, providing a roadmap for the subsequent administration of the controversy. Direct communication thereafter with the Chairperson or all three arbitrators (bypassing the administrators but strictly conforming to the forum's rules on that subject) prior to a hearing should be encouraged to resolve discovery issues in advance of the hearing. Pre-hearing direct communication with the Chair will go a long way in assuring an expeditious substantive hearing. Most, if not all, pre-hearing issues can be argued by the parties and decided by the Chair through electronic mail.

Chairs Must Take Charge

Hearings that move along at a good clip are those in which the Chair is fully in charge of the proceeding. The Chair must have a certain presence that pulls his or her fellow arbitrators and all the parties together to make the proceeding a coherent and fair one. What should a Chair do with attorneys who prefer to litigate as opposed to arbitrate a case or who refuse or are unable to adapt to the relative informality of the arbitration process? "If the case is to move expeditiously," counsels FINRA's The Arbitrator's Manual, "the Chair may be required to interrupt an attorney attempting such formalities, explain the proper procedure, and remind counsel that he or she is in an arbitration proceeding. If the conduct of the attorney continues, the Chair should become more forceful.''

It is the Chair who sets the tone for civility and decorum at a hearing. He or she should rule with a firm hand, but with a sensitivity to the parties and a sense of humor that comes from confidence in oneself and experience in the process.

The American Arbitration Association (AAA) has continuing education courses that can be found for its arbitrators in the Neutrals' eCenter under the "Online Training" section of its Website. I found particularly enlightening "Presiding Over the Evidentiary Hearing'' and "Guiding the Panel's Deliberation and Writing of Awards.'' The overriding watchwords of "speed, economy and justice in managing the hearings'' are stressed throughout the training sessions. Here are some highlights. Become an AAA arbitrator if you want to learn more. [footnote omitted]

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