While arbitration is growing in use globally, the tactics and conduct of difficult attorneys can have serious consequences for parties and threaten the public’s confidence in arbitration as a viable dispute resolution system. Excessive adversarial tactics employed include failing to produce necessary discovery, making frivolous objections to discovery, and inundating the other party with massive amounts of motions and discovery requests. Difficult behavior by an attorney in arbitration may be caused by a variety of factors such as counsel’s unfamiliarity with arbitration leading the attorney to revert to conduct appropriate in litigation but not in arbitration, or habit, or client insistence, or deliberate tactics.
Arbitrators must take primary responsibility for policing obstreperous actions by counsel that affect the fairness of proceedings. Arbitrators must also take reasonable steps to deter and, when appropriate, penalize such conduct, including the imposition of appropriate sanctions. While an arbitrator may never know the actual reason for the inappropriate behavior with which he or she is dealing, employing the following techniques can help set expectations and head off disruptive behavior:
- Educate counsel and the parties starting at the preliminary hearing. Counsel should be strongly encouraged to familiarize themselves with the arbitration rules and make their applications to the arbitrator in terms of the arbitration rules rather than the rules of court.
- Be explicit about your preferences in terms of discovery and submissions.
- Engage the parties in a forthright and meaningful discussion of discovery needs, especially electronic discovery.
- Consider asking the clients as well as counsel to attend the preliminary hearing so that the parties can hear the arbitrator’s directives for themselves.
- Remind the parties often – during status conference calls, in pre-hearing orders, and at other opportunities – of your expectations for an efficient and economical process; the more vigorous the education, the less likely will be the need to deal with disruptive tactics and conduct.
Arbitrators play a critical role in asserting their authority to provide parties with a cost-effective and expeditious arbitration and have the tools to manage the arbitration process. These tools coupled with the courts’ strong support of arbitrators’ discretion in this context provide arbitrators with the means to take an active role in controlling the time and cost of arbitration when they are jeopardized by the tactics and conduct of difficult attorneys. Consult with your Ally Law member firm to determine if arbitration is the right method of dispute resolution for your issue. If so, your Ally Law member firm can provide an experienced arbitration lawyer for your situation and assure you select the right arbitrator. For more information about Ally Law member firm services and outstanding lawyers, contact us at firstname.lastname@example.org.
Click here for the original article by Jack Berryhill of Ally Law member Moye White LLP.