Short recess after opening statements to discuss possible settlement

Short recess after opening statements to discuss possible settlement

1. 
   Before opening statements, the arbitrator may, in the arbitrator’s discretion, announce that, after opening statements, the hearing will be recessed for a brief period to permit the parties and their counsel to explore whether they now wish to discuss settlement.
   

3. Witness testimony

   1. 
      Each party is to make arrangements to schedule the attendance of its witnesses so that the case can proceed without unnecessary delay.
      
   2. 
      Each party presenting evidence is to advise the other party in writing of the names of the witnesses who will be called to testify the next day and the order in which the witnesses will be called.
      
   3. 
      To reduce costs, the parties are strongly encouraged to agree to use videoconference technology for witness testimony, especially for non-critical matters; in deciding whether to allow such use absent agreement, the arbitrator will give due weight to the value of witness presence.
      

4. 
   Expert witnesses are to testify in a group-discussion format to the greatest extent practicable.
   

5. 
   In consultation with counsel, the arbitrator may direct that selected fact witnesses likewise testify in a group-discussion format.
   
6. 
   The arbitrator will consider whether the expense of a court reporter need be incurred as the hearing date approaches. The parties are free to agree to engage a court reporter, either separately or jointly, in which case the transcript will serve as an official record of the proceeding.
   
7. 
   Subject to any applicable legal- or ethical constraints, any counsel or other party representative may interview a consenting witness or prospective witness (“individual”) and discuss the individual’s prospective testimony with him or her.
   

8. 
   Copies of exhibits to be used should be available to a witness on the stand and in the hands of counsel before an examination begins. If voluminous, relevant exhibits can be kept, for example, in tabbed notebooks stacked on a cart located within easy reach of the witness, counsel can direct the witness to the volume and tab number of exhibits as needed.
   

9. 
   The arbitrator will not instruct a witness to answer “yes or no” to questions that (1) are compound, (2) require the witness to make or accept a characterization rather than testify to a fact, or (3) are argumentative in form or substance.
   

1. Bench briefs

   1. 
      At any time, any party may serve, upon the arbitrator and all other parties, one or more short “bench briefs.”
      
   2. 
      Each bench brief should briefly outline what the party believes the arbitrator should be looking for in the exhibits and witness testimony and citing applicable law.
      
   3. 
      Any party may likewise serve a revised version of its bench brief, e.g., to address points made in another party’s bench brief or in testimony at the hearing.
      

1. Post-hearing matters

   1. The award

      1. 
         The award will follow the contract and the law; the arbitrator will not act as amiable compositeur or ex aequo et bono unless both of the following are true:
         

extraordinary circumstances warrant such action by the arbitrator.

2. 
   The arbitrator may circulate a draft award to counsel for suggestions to correct any perceived misunderstandings, misstatements, or omissions. Alternatively, the award itself may state that it will become final at a stated time unless it is withdrawn or modified. In either case, a party may suggest corrections in writing; upon written request by a party, the arbitrator will convene a conference call at which counsel can address specific issues stated in the draft- or not-yet-final award.
   

2. Baseball arbitration of specified disputes (delete if not agreed)

   1. 
      By agreement of the parties, disputes about the amount of damages and other numerical issues are to be decided using baseball-style arbitration (also known as last- or final-offer arbitration) in accordance with this section 6.2.
      

1. 
   Each party is to provide the arbitrator and the other party with a written proposed decision disposing of the stated issue or issues (each, a "proposed decision").
   
2. 
   The arbitrator may specify a deadline for submitting a proposed decision (ten business days after the end of the hearing if not otherwise agreed or directed).
   
3. 
   Each party may include, in its proposed decision, a brief explanation why the arbitrator should select that proposed decision.
   
4. 
   In the interest of speeding up settlement discussions at the hearing, the parties are encouraged, but not required, to exchange proposed decisions while their representatives are still at the place of the hearing.
   
5. 
   The arbitrator may advise the parties, no more than once, that in the arbitrator's view, neither proposed decision should be selected (preferably explaining why); in that case, the arbitrator will allow the parties time in which to submit revised proposed decisions.
   
6. 
   Except as provided in § 6.2.6, the arbitrator will select, without modification, the one proposed decision that the arbitrator regards as most-closely matching the decision that the arbitrator would render.
   

1. Post-award matters

   1. Retention of jurisdiction for clarification of award

2. Appeal to AAA appellate arbitration panel (delete if not agreed)

1. 
   By agreement of the parties, any award by the arbitrator that is designated as an appealable award (“underlying award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”).
   

1. 
   The underlying award is to be, at a minimum, a reasoned award.
   
2. 
   The underlying award will not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired with no party filing such a notice.
   
3. 
   Appeals must be initiated within 30 days of receipt of the underlying award, as defined by Rule A-3 of the Appellate Rules, by filing a notice of appeal with any AAA office.
   
4. 
   If an appeal is timely filed, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
   

1. Partial retrial in court (delete if not agreed)

1. 
   By agreement of the parties, the final award will not be binding, and the relevant part or parts of the dispute may be adjudicated de novo in a court of competent jurisdiction, if all of the following conditions are met:
   

1. 
   A party to the arbitration that desires to challenge some or all of the final award (the “challenger”) must give notice of its challenge to each other party, effective no later than 10 business days after the issuance of the award, setting forth a short and plain statement of the challenge showing that the challenger is entitled to relief.
   

2. 
   The challenger must duly file and serve an action (the "challenge action"), in a court of competent jurisdiction, against one or more other parties to the arbitration (each, a "challenge respondent"), no later than 30 days after the issuance of the award.
   
3. 
   The challenge action must seek only one or both of:
   

a declaratory judgment (or comparable action by the court) that a challenge respondent is not entitled to relief that was granted against the challenger in the final award.

2. 
   Time is of the essence for each prerequisite set forth in § 7.3.1; for the avoidance of doubt, IF: A challenger, for any reason, does not meet all such prerequisites as to a given challenge respondent; THEN: The final award will automatically become binding between that challenger and that challenge respondent, without further action by any individual or organization.
   
3. 
   Any “applicable limitation period,” as defined below, is to be extended until the challenge filing deadline to the extent necessary to permit filing of the challenge action.
   

1. 
   For this purpose, the term "applicable limitation period" refers to any limitation period whose expiration did not preclude asserting a claim for relief in arbitration, but would preclude filing the challenge action.
   
2. 
   Against the possibility that applicable law does not permit the above extension of the applicable limitation period, the relevant challenge respondent separately and expressly agrees not to assert the expiration of the applicable limitation period as a defense to the challenge action.
   
1. 
   To reduce the cost of the challenge action and duplication of effort, any challenger or challenge respondent may file a motion—and may represent to the court that the motion is joined by all other parties to the challenge action—requesting that the court take one or more of the following actions:
   
   1. 
      admit into evidence some or all of the record in the arbitration hearing, in the general form of a joint appendix in an appeal under the [U.S.] Federal Rules of Appellate Procedure (or as otherwise required or permitted by applicable law or rules), without regard to any objection made at the arbitration hearing or in the challenge action; and/or
      
   2. 
      deem the non-binding final award of the arbitrator to be the report of a master who was appointed, with the consent of the parties, to hold trial proceedings and recommend findings of fact, with the same effect as stated in Rule 53(f) of the [U.S.] Federal Rules of Civil Procedure.
      
2. 
   Neither party will be entitled to discovery in or concerning the challenge action except by leave of the court for good cause as shown by clear and convincing evidence.
   
3. 
   With respect to any given challenge respondent, IF: The final judgment in the challenge action, from which no further appeal is taken or possible, is not at least 20% more favorable to the challenger than the arbitration award; THEN: The challenger must pay or reimburse that challenge respondent for:
   

all reasonable expenses, including for example reasonable fees and -expenses for attorneys and expert witnesses, incurred by that challenge respondent in both the arbitration and the challenge action (including without limitation in all appeals from the judgment in the challenge action).

7. 
   To the greatest extent not prohibited by applicable law, EACH PARTY PERMANENTLY, VOLUNTARILY, KNOWINGLY, AND IRREVOCABLY WAIVES any right it may have to trial by jury of the challenge action or any related issue.
   

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