Efficient arbitration

On approximately 100 occasions, I have been appointed as an arbitrator or a court appointed evaluator/special master.

  • Arbitrating commercial, resource, energy, natural resource matters since 1995
  • CPR Institute for Dispute Resolution, N.Y., N.Y., Panel of Distinguished Neutrals (Denver)
  • American Arbitration Association: Panel of Arbitrators (Commercial, Construction Panel, Energy Panel, Oil & Gas Panel, Large Complex Panel)

I have issued awards or interim awards on more than 40 occasions. I am concerned over the trend that arbitration now seems to have lost its value for speed and cost efficiency – so I work to try adjusts to return arbitration to its intended and cost effective function. This is motivated in part by the CCA Protocols for Expeditious, Cost-Effective Commercial Arbitration.

Some approaches to more efficient arbitration can include the following:

Prehearing focus

  • Use of a very detailed scheduling conference to provide clarity about how we will go forward. Example outline for such a conference.
  • Consider phased discovery where appropriate; such as (1) Briefing establishes phased discovery; (2) Opening briefs set scope of facts and discovery is shaped by and responds to opening briefs; then (3)Responsive brief post discovery with any needed follow-up discovery conducted
  • Prompt resolution of any discovery issues (using panel chair in applicable cases).
  • Use one or more prehearing conferences with the arbitrator or panel to focus evidence

Hearing time used as efficiently as possible

  • Hearing is bi or trifurcated with prospect of interim or partial final awards
  • Key disputes are presented side by side, highlighting differences in argument and testimony.
  • Expert – can include side-by-side (i.e. simultaneous) expert testimony on specified subjects, with each expert sworn and responding to a sequence of questions by legal counsel, the arbitrator(s) and in certain instances – by the other parties’ expert.
  • Consider a provision or agreement that permits the arbitrator or panel to limit testimony for efficiency with a confirmation that the exercise of such power does not provide parties with any rights to later vacate the award. This could be a written confirmation from the parties that the arbitrator is authorized and encouraged to appropriately limit evidence, and that no appeal rights are enhanced thereby.

Experience

My arbitration experience includes cases concerning the following:

 

  • Construction
  • Mining royalty payment
  • Power transmission
  • Telecommunications
  • Contract disputes
  • Oil & Gas exploration, drilling, development
  • Mining
  • Thermal energy Thermal energydevelopmentMining
  • Franchising
  • Internet marketing
  • Legal services
  • Commercial shipping
  • Warranty and equipment performance
  • Claims of fraud, misrepresentation
  • Partnership disputes
  • Declaratory actions
  • Fiber optic cable
  • Manufacturing
  • Residential construction
  • AAA Home Const. Rules
  • Commercial construction
  • Industrial construction
  • Multi-family construction
  • Environmental conflict
  • Contract interpretation
  • Contract-changed conditions
  • Contract-recission
  • Equitable remedies
  • Software development
  • Business loans
  • Mortgaging
  • HOA disputes
  • Coal deliveries
  • Oil & Gas royalties
  • UCC – quality of goods
  • Beverage industry