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Summary: Basic Skills For The New Arbitrator begins with a discussion of how and why parties decide to arbitrate, the appointment of the arbitrator, and the arbitrator's duty of disclosure. You will learn to conduct a preliminary conference, issue pre hearing orders, establish a discovery schedule, resolve discovery disputes, deal with attempted delays, preside at an arbitration hearing, render the award, and avoid prejudicial conduct during the hearing and after the award. ...show more ...show lessEdition/Copyright: 93
Arbitration is an alternative to resolving disputes in court. The arbitration process allows the parties to select an individual or several individuals with expertise in the subject matter of the dispute to listen to the evidence and render a binding decision.
After ten years as a practicing attorney, I yearned for an opportunity to actually decide a case rather than advocating the position of one of the parties. Serving as an arbitrator allowed me to fulfill my desire to resolve disputes. Since my first appointment as an arbitrator, I have served in many cases administered through various arbitration organizations. In these instances, I have had the benefit of rules and procedures previously established by the administering organizations. I also have served as an arbitrator for cases administered by the parties themselves, during which I have had to devise my own procedures and methods for resolving the matter in dispute.
While there are many published court decisions which deal with legal issues arising from arbitration, I have found that these decisions offer little guidance to the arbitrator as to how to conduct an arbitration. The practical guidance that I have received has come from fellow arbitrators and personnel from the various arbitration organizations with whom I have worked. Over the years, I learned by doing and consulting with other arbitrators. I followed my instincts, reacted to situations, and refined my techniques. As an arbitrator, I have found a great deal of personal satisfaction in dispute resolution.
This manual suggests answers to one hundred questions a new arbitrator might ask concerning the arbitration process and the role of the arbitrator. It is not meant to instruct attorneys how to represent clients in arbitration, nor does it contain instruction for serving as a mediator, which is a different technique for resolving disputes. Please note that Question No. 101 is your question to ask me. I invite the reader to ask me any question that I have not addressed. I also welcome any other suggestions or comments.
The Myth And Reality Of Arbitration
The King gave the order, "Fetch me a sword". A sword was brought before the King and the King said, "Cut the live child in two, and give half to one and half to the other." I Kings 3:24-25.
There is a myth about arbitration. As an attorney, I heard it from clients and fellow attorneys. Not until I rendered my first arbitration award did I have personal experience that the myth was probably not true. Yet, the myth persists, usually in the following form: Arbitration? That's when you don't go to court, but pick somebody to decide the case informally, and you go and discuss it with the arbitrator and the arbitrator will usually "split the baby" - you know, give you at least half of what you ask for. This myth is not only factually inaccurate as it applies to arbitration today, but it is historically inaccurate as to the original dispute to which it refers.
The story of King Solomon's first arbitration does not support the arbitration myth. Let us first consider testimony of the witnesses in the original "split the baby" incident.
Two women came before the King. The first woman said "This woman and I live in the same house. I gave birth to a child and she gave birth to a child. During the night, her child died. She arose in the night and took my child, and laid her dead child on me. When I awoke to nurse my child, he was dead, but when I looked at him closely he was not my child." The other woman spoke. "No, the live one is my son, and the dead one is yours." But the first insisted, "No the dead boy is yours; mine is the live one." And they went on arguing before the King.
At this point, King Solomon rendered an interim award. "Fetch me a sword".
A sword was brought before the King and the King said, "Cut the live child in two, and give half to one and half to the other." In response, one of the parties requested modification of the award. But one of the woman pleaded with the King, "Give the live child to her, only do not kill it." The other insisted, "It shall be neither yours nor mine, cut it in two."
Faced with this additional testimony, King Solomon modified his award.
Then the King spoke, "Give the live child to the one who pleaded for its life - and do not put it to death; she is its mother."
It is important to note what King Solomon did not do. He did not split the baby! What then is the reality of arbitration? From the arbitrator's perspective, my personal experience is that in rendering an arbitration award, I do not "split the baby." In fact, I have never been tempted to do so. The parties are not looking for a simplistic 50%-50% compromise solution, or else they would have settled the matter themselves. If they do wish to compromise, they still may do so at any time after arbitration is initiated. In most instances, I have either granted a claim in full, or almost in full, or denied a claim in its entirety. Generally, in commercial disputes, if a party is correct in its position, and meets its burden of proof, it will prevail. If it is not correct in its position, or fails to meet its burden of proof, it will not prevail. In claims that consist of various smaller claims, some are granted and some are not. If the claim is not supportable, I deny it. I do not reward a claimant half of its claim for just "spending the time".
The reality of arbitration from the parties' perspective is that the parties will always know more about the dispute than an arbitrator ever will. They have lived with the situation until it evolved into a dispute. Even when the time arrives to make an award, the arbitrator may still know less than the parties know. In any situation involving advocacy, the trier of fact is left with the "spin" that the parties place on the facts. Even so, if the arbitrator has performed the duties of the position well, and taken appropriate steps to control the process so that the necessary information is submitted by the parties, the arbitrator can arrive at a reasoned, supportable decision. Your function as an arbitrator is not to give a party to the arbitration an "A" for effort, nor an "A" for anger and indignation. Your compassion for the situations presented to you must be tempered with objectivity. Your responsibility is to render an award based on the evidence. You may recall that when Solomon became king, he realized the difficulty of the decisions he would be required to make. His fervent prayer was for an "understanding heart."
Goodman, Allan H. : Georgetown University Law Center / Solomon Publications
Allan H. Goodman is a Judge on the General Services Administration Board of Contract Appeals. From 1975 to 1993, Judge Goodman was an attorney in private practice. Since 1987 he has been an Adjunct Professor of Law at the Georgetown University Law Center, where he teaches Construction Contract Law. Judge Goodman has taught Government Contract Law at the University of Richmond - T.C. Williams College of Law (1980-85) and the University of Virginia (Northern Virginia Extension)(1981-84).
Judge Goodman serves as a private arbitrator and mediator. He has been a member of the American Arbitration Association's Commercial Panel of Arbitrators since 1980, and has served on more than forty arbitration panels for the AAA. From 1989-92 he was a member of the D.C. Bar's Attorney-Client Arbitration Board which provides mediation and arbitration of fee disputes between attorneys and clients. From 1990-92 he was a member of the District of Columbia Superior Court Multi-Door Dispute Resolution Panel, where he arbitrated contract disputes. While in private practice, Judge Goodman also mediated disputes arising from the construction of the Federal Triangle Project (recently renamed the Ronald Reagan Building) in Washington, D.C., the largest federal office building built since the Pentagon.
Judge Goodman is an associate member of the National and District of Columbia Chapters of the Society of Professionals in Dispute Resolution (SPIDR) and a member of the Virginia Mediation Network. He lectures frequently on alternative dispute resolution techniques, and has been a trainer of new arbitrators and mediators for the American Arbitration Association and Solomon Publications. In 1996 and 1997 he was a member of the National Construction Arbitrator Training Faculty of the American Arbitration Association.
In 1994, Judge Goodman founded Solomon Publications, which publishes self-instruction manuals and provides private training for new and experienced arbitrators and mediators. He is the author of Basic Skills For The New Arbitrator (Solomon Publications, 1993) and Basic Skills For The New Mediator (Solomon Publications, 1994).
Judge Goodman is a graduate of Georgetown University (B.S.F.S. cum laude, 1972) and the University of Toledo College of Law (J.D. 1974), where he was an associate editor of the Law Review. He is a member of the Bars of Virginia, the District of Columbia, and Maryland.
"The private arbitrator will find this easy-to-use book extremely valuable. The detailed table of contents will permit the private arbitrator to use this book, even during the hearing when issues arise."
--NIDR News Volume IV, Number 2 April-May 1997
"Basic Skills For The New Arbitrator taught me everything I needed to know to confidently handle my first arbitration - it is a terrific resource. "
--Jeffrey M. Parker, Parker & Associates, New York, NY
"Basic Skills For The New Arbitrator . . . is relevant, well-organized, and informed.
--Edward J. Sheats, Jr., Esquire, Syracuse, NY.
Solomon Publications Web Site, December, 2001
The Arbitration Process And Role Of The Arbitrator
1. What Is The Difference Between Binding And Non-Binding Arbitration?
2. What Is The Difference Between Arbitration And Mediation?
3. When Do Parties Agree To Resolve A Dispute By Arbitration?
4. What If A Party Who Has Agreed To Arbitration Files A Lawsuit Instead?
5. Do I Have To Be A Lawyer In Order To Be An Arbitrator?
6. Why Do Some Cases Need More Than One Arbitrator?
7. Even If I Can Learn The Procedures, What About The Rules Of Evidence?
8. What Questions Do I Ask About The Case When I Am Appointed As The Arbitrator?
9. What Information Do I Disclose?
10. What Documents Do I Need To Review After I Am Appointed?
11. May The Respondent File A Counterclaim?
Pre hearing Procedures And The Preliminary Conference
12. How Do I Communicate With The Parties After I Am Appointed?
13. I've Been Appointed And I've Made The Necessary Disclosures
- Now What Do I Do?
14. Why Do I Need A Preliminary Conference?
15. What Procedure Do I Use To Initiate The Preliminary Conference?
16. Where Do I Hold The Preliminary Conference?
17. How Do I Conduct The Preliminary Conference?
18. Why Do I Need The Parties To Explain The Case At The Preliminary Conference?
19. How Do I Get The Parties To Conduct Pre hearing Discovery If I Have No Authority To Enforce Discovery?
20. How Do I Determine A Discovery Schedule And Hearing Date?
21. What Other Matters Can Be Discussed At A Preliminary Conference?
22. Should I Inquire If There Have Been Any Attempts To Settle The Dispute At The Preliminary Conference?
23. Should I Participate In Settlement Discussions?
24. Why Not?
25. What If The Parties Ask Me To Attempt To Mediate The Dispute?
26. Is The Preliminary Conference Always Held In Person, Or Can I Do It By Telephone?
27. How Do I Assure That The Parties Abide By The Agreements Made During The Preliminary Conference?
28. How Do I Deal With Parties Who Are Not Represented By Lawyers?
Pre hearing Submissions, Subpoenas, And Discovery Disputes
29. What Type Of Information Should The Parties Submit Before The Hearing?
30. How Do I Issue Subpoenas If The Parties Want To Subpoena Witnesses Or Documents To The Hearing?
31. What Types Of Discovery Disputes Might I Be Required To Resolve?
32. How Do I Decide Discovery Disputes?
33. What Do I Do If Someone Upon Whom A Subpoena Is Served Does Not Appear At The Hearing?
34. If The Hearing Concludes Before A Party Enforces A Subpoena, Does The Party Lose The Right To Hear The Testimony Or Have The Documents Produced?
Conducting The Hearing
35. What Are The Common Methods A Party May Use To Delay A Hearing?
36. How Do I Deal With Attempts To Delay The Hearing?
37. What Facilities Do I Need To Have A Hearing, And Where Is The Best Place To Have It?
38. What Seating Arrangement Is Used For The Hearing?
39. What Is The General Procedure Used At A Hearing?
40. In General, How Do I Best Perform My Duties As An Arbitrator During The Hearing?
41. What Is The Difference Between Argument And Testimony?
42. What Can I Do If I Believe An Opening Statement Is Too Long?
43. Who Is Allowed In The Hearing Room?
44. What About Witnesses That Are Neither Parties Nor Necessary Persons?
45. What If The Parties Want The Witnesses In The Room And I Don't?
46. How Do I Avoid Improper Contact With The Parties During The Hearing?
47. How Do I Deal With Parties That Are Not Represented By Counsel At The Hearing?
48. Does Arbitration Require A Court Reporter And A Transcript Of The Proceedings?
49. Do I Need A Transcript To Arrive At My Decision?
50. If The Parties Ask Me If I Prefer A Court Reporter, What Do I Tell Them?
51. Should I Take Notes During The Hearing?
52. May I Question A Witness?
53. If It Appears There Is An Important Question Or An Issue That Both Parties Are Intentionally Avoiding, Should I Ask The Question Or Raise The Issue?
54. Is There Anything I Should Not Do During A Hearing?
55. What If A Witness Becomes Sick And One Of The Parties Wants To Postpone The Hearing?
56. What If The Respondent Fails To Participate In The Arbitration By Not Responding To The Arbitration Demand?
57. If The Respondent Fails To Appear At The Hearing, Does The Claimant Automatically Win?
58. Do Witnesses Testify Under Oath?
59. How Is An Oath Administered To A Witness Testifying Through An Interpreter?
60. Will Lawyers Make Objections To Testimony And Exhibits?
61. What Are The Most Common Objections?
62. How Do I Resolve An Objection That A Question Is Irrelevant?
63. How Do I Resolve An Objection That A Question Is Leading?
64. What Is Hearsay?
65. How Do I Rule On Hearsay Objections?
66. What Does "Objection For Lack Of Foundation" Mean?
67. Does The Person Who Wrote A Document Have To Testify About It Before I Can Consider It?
68. How Do I Rule On Objections To Documents?
69. What Other Types Of Evidence May Be Offered At A Hearing Besides Testimony And Documents?
70. Are Summaries Of Documents Proper Evidence?
71. What Weight Do I Give To Evidence In Arriving At My Decision?
72. How Do I Visit The Site Of The Dispute?
73. Can I Suggest To The Parties How They Should Present Their Case?
74. How Do I Deal With Hostile Witnesses?
75. How Do I Deal With Hostile Parties?
76. How Do I Deal With Hostile Lawyers?
77. What Should I Do If For The First Time At The Hearing I Recognize A Witness As Someone That I Know?
78. What Is A Fact Witness?
79. What Is The Difference Between A Fact Witness And An Expert Witness?
80. How Do I Know That A Witness Is Really An Expert?
81. Do I Admit A Document As A Hearing Exhibit That A Party Did Not Give To The Other Party In Discovery And Did Not Include In The Exhibits Submitted Before The Hearing?
82. How Do The Parties Summarize What They Think They Have Proved After The Hearing?
83. Which Is Preferable, Closing Arguments Or Post hearing Briefs?
The Arbitration Award
84. How Do I Decide Who Prevails?
85. I Am Looking At My Notes And I Cannot Remember What The Witness Looked Like. How Can I Avoid This?
86. How Can I Understand The Legal Issues If I Am Not An Attorney?
87. How Long Do I Have To Render My Award?
88. What Is The Form Of My Award?
89. What If The Parties Request A Written Opinion Which Includes My Reasons For Making The Award?
90. Does The Non-Prevailing Party Pay The Prevailing Party's Legal Fees?
After The Award
91. When Are The Arbitrator's Duties Concluded?
92. What Should I Do With My Notes After I Render The Award?
93. What Should I Do With The Hearing Exhibits After I Render The Award?
94. May I Discuss My Reasoning With The Parties After I Render The Award?
95. How Is An Arbitration Award Enforced?
96. How Does A Disappointed Party Challenge An Arbitration Award?
97. How Do I Arrange Compensation For My Services?
98. How Do I Make Sure I Am Paid?
99. What If The Parties Have Not Paid In Advance When The Hearing Is Concluded?
100. What Is The Most Fundamental Principle Of Being An Arbitrator?
101. This Is Your Question!
In addition to answering the questions listed above, Basic Skills For The New Arbitrator contains the following sample forms:
Arbitrator's Request For Preliminary Conference
Arbitrator's Pre hearing Order
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