Draft 2015-06-15 An Arbitration Scheduling Order Drawing on the Manual for Complex Litigation for Faster, Less-Expensive Awards
Ex parte communications with the arbitrator are prohibited
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- Confidentiality is required
- Stipulations are strongly encouraged (and have limited effect)
Ex parte communications with the arbitrator are prohibitedPer AAA Commercial Rule R-19, except at oral hearings and case-management conference calls, the parties and their counsel are not to communicate orally with the arbitrator. Counsel are to submit directly to the arbitrator, by email, any correspondence, motions, requests for approval, briefs, etc., that require the arbitrator’s attention. A copy is to be provided to the Case Administrator and to all other parties in the same manner, allowing all recipients to receive the communication at substantially the same time. The arbitrator may communicate in writing, for example by email, directly with the parties (via their counsel except in extraordinary circumstances); the arbitrator expects to copy all parties and the Case Administrator on any written communication that he sends to any party. Confidentiality is requiredPer AAA Commercial Rule R‑23(a), any confidentiality provisions of the AAA Commercial Rules and/or of the parties’ agreement to arbitrate will apply; if so requested, the arbitrator will consider entering a formal confidentiality order, preferably by agreement. COMMENT: AAA Commercial Rule R‑23(a) expressly gives the arbitrator the power to enter confidentiality orders. In fact, Rule 23 is even stricter, stating that “The arbitrator shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the parties agree otherwise or the law provides to the contrary.” Counsel may wish to consider the confidentiality order in Model Scheduling Order #4 of the Model Case Management Scheduling Orders for Patent Cases published by a special committee—comprised of experienced litigators and chaired by one of the authors—of the Section of Intellectual Property Law of the American Bar Association; its model orders are available at http://www.OnContracts.com/ABA-IPL-case-management-orders. Case-management calls will take place: Weeks 6 and 10, Tuesday, 11:00 a.m.COMMENT: The specific dates and times are flexible, of course; the 11:00 a.m. time was selected as a placeholder because it works reasonably well throughout the U.S. no matter what time zone is used as the Reference Time Zone. Case-management conference calls will be convened at the dates and times (in the Reference Time Zone) specified in the heading of this section 3.5, or as otherwise directed by the arbitrator in consultation with the parties. The main agenda for each case-management call will include: (1) status of preparing the Chronology referred to in section 4 below; (2) remaining areas of disagreement; (3) discovery needs; (4) motions, dispositive and otherwise; and (5) as appropriate, any checklist items stated in the AAA Commercial Rules. The arbitrator has discretion to proceed with a scheduled- or duly-noticed call even if a particular party’s counsel are not on the call (in such a case, however, the arbitrator’s preference is normally to reschedule the call to ensure each party has an opportunity to be heard on all matters discussed or decided). The arbitrator may direct that one or more in-house counsel and/or “business people” of each party participate in particular calls as well. COMMENT: This provision anticipates that the parties might be less resistant to cost-reducing stipulations if clients, not just counsel, attend particular conference calls. See MCL 11.471, which suggests: “Since an angry client, rather than the attorney, is often the person responsible for an ‘admit nothing’ posture in the litigation, consider directing the clients themselves to attend a conference at which the desirability of early stipulations is discussed.” The arbitrator can consider recessing the conference call to permit counsel and their clients to confer separately, then resume the conference call to explore possible areas of agreement. Stipulations are strongly encouraged (and have limited effect)COMMENT: This provision is modeled on Fed. R. Civ. P. 36(b) and MCL 11.471. The MCL observes that: Attorneys are sometimes reluctant to make any concessions on behalf of their clients. In such cases, the judge may be able to persuade counsel that, in addition to fulfilling their responsibilities as officers of the court, they will serve their clients’ interests by streamlining the litigation through appropriate concessions and admissions. The refusal by counsel to stipulate to provable facts almost never results in an advantage through a failure of proof and usually imposes additional costs on both sides in discovery, at trial, or both. MCL 11.473 at 96-97 (emphasis added). The parties are encouraged to stipulate to as many points of fact and law as possible; for purposes of this arbitration, to “stipulate” means that, for purposes of this arbitration only, the stipulating party will not dispute, contest, or require proof of the stipulated matter. A stipulation may be phrased in terms such as “Stipulated,” “Not contested,” “Not disputed,” “Uncontested,” “Undisputed,” and the like, all with the same effect. A stipulation is binding on the stipulating party, except that the arbitrator, on motion, may permit withdrawal or amendment of a stipulation if: the withdrawal or amendment would promote the presentation of the merits of the dispute being arbitrated; and the arbitrator is not persuaded that the withdrawal or amendment would prejudice another party in maintaining or defending the dispute on the merits. COMMENT: This language is modeled on Fed. R. Civ. P. 36(b); its use is suggested in MCL 11.471, which states that “[counsel] may be willing to enter early stipulations if there is provision analogous to that in Federal Rule of Civil Procedure 36(b) for timely withdrawal from an incorrect stipulation on the basis of newly discovered evidence when no substantial prejudice to other parties would result.” A party’s stipulation of the truth of an uncontroverted fact does not affect the party’s right to contest the relevance or probative value of the fact. COMMENT: This subdivision is adapted from MCL 11.471, which suggests that “[t]he court can assist the stipulation process by stressing the distinction between conceding the truth of some fact or agreeing not to contest it, and conceding its admissibility or weight…. Indeed, if a party contends that some fact is irrelevant or otherwise inadmissible, there is more reason to admit to its truth without the exhaustive investigation and discovery that might be warranted for an obviously critical fact.” A stipulation is subject to any limitation stated in it. Directory: docs docs -> Application for acem docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. 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