Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
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- Modifications and waivers of this Order
AdministrationDefinitionsUnless otherwise indicated: “Arbitration Law” refers to the (U.S.) Federal Arbitration Act. “Arbitration Provider” refers to the American Arbitration Association (“AAA”). “Arbitration Rules” refers to the AAA Commercial Arbitration Rules. “Case Administrator” refers to the Arbitration Provider’s administrator for this case. “Claim,” whether or not capitalized, refers broadly to a claim, counterclaim, cross-claim, and any other demand for relief or remedy. “Counsel,” whether or not capitalized, in the case of an unrepresented party, refers to the party him- or herself. Deadlines: Unless otherwise directed by the arbitrator, all deadlines and other time periods expire at exactly 5:00 p.m. in the Reference Time Zone (defined below). [For AAA-managed cases:] The term “filing” a document with the Arbitration Provider refers to: uploading a PDF copy of the document to the Arbitration Provider’s Web site, and notifying the Case Administrator and counsel for other parties and, if applicable, the arbitrator, by email, that the document has been filed, preferably with the PDF copy attached (but see below concerning the confidentiality of email), to allow the recipient to read the document quickly without having to log into the Arbitration Provider’s Web site. Such notification by email satisfies any requirement for service of the document on other parties and the arbitrator. “Reference Time Zone” means Central (U.S.) time, with daylight-savings time as in Chicago. “Stipulation”—see § 4.1. “Week 1” refers to the week in which the initial case-management conference call occurs; Weeks 2, 3, etc., have corresponding meanings. References to sections are to those of this Order unless otherwise indicated. Modifications and waivers of this OrderWhile it is true that this arbitration proceeding is “owned” and controlled by the parties, it is also true that, when the parties agreed to arbitration, they implicitly stated their desire to avoid the expense and delay of litigation as much as possible. Accordingly, this Order’s limitations on discovery; the hearing date; and other details, were all chosen—in consultation with the parties’ counsel—with that agreed goal in mind. COMMENT: See, e.g., AAA Commercial Rule R‑21(b), which charges the parties and the arbitrator with “discuss[ing] and establish[ing] a procedure for the conduct of the arbitration that is appropriate to achieve a fair, efficient, and economical resolution of the dispute,” as well as AAA Commercial Rule R‑23, which states in part that “[t]he arbitrator shall have the authority to issue any orders necessary to enforce the provisions of rules R-21 and R-22 and to otherwise achieve a fair, efficient and economical resolution of the case.” See also Thomas J. Stipanowich, Arbitration: The New Litigation, 2010 Ill. L. Rev. 1. Consistent with that goal, in the arbitrator’s discretion, the arbitrator may decline to give effect to a proposed modification or waiver of this Order — even if the modification or waiver was agreed to by the parties’ counsel — unless the modification or waiver was approved, either in writing or orally at a case-management conference call, by (1) each party that is a natural person, and (2) an authorized in-house representative of each other party, for example a senior management representative or in‑house counsel of the party. COMMENT: See the commentary to § 3.2.1. The requirement of a party sign-off for modifications of discovery limitations, the hearing date, etc., should help to keep costs down and the case moving. This provision is a variation on how one arbitrator dissuaded counsel from requesting a third agreed continuance of an arbitration hearing date: He told counsel that he would not approve the third continuance unless the parties’ in-house representatives agreed to pay his standard cancellation fee (which he had waived for the previous two continuances). Amazingly, counsel then decided that they didn’t really need the third continuance after all. By way of example and not of limitation: Because depositions are costly and not always cost-effective, this Order requires the arbitrator’s approval to take depositions, even those that are agreed to by the parties’ counsel. COMMENT: Typically, arbitration rules severely restrict the parties’ ability to take depositions; see the commentary to § 4.9.1. Suppose hypothetically that the parties’ counsel, by agreement between them, conducted one or more depositions anyway, without first obtaining the approval of either the arbitrator or their clients. In that situation, the arbitrator has discretion to decline to consider any evidence resulting from the depositions. COMMENT: See, e.g., AAA Commercial Rule R‑23(d), under which the arbitrator may issue enforcement orders, for example, “in the case of willful non-compliance with any order issued by the arbitrator, drawing adverse inferences, excluding evidence and other submissions, and/or making special allocations of costs or an interim award of costs arising from such non-compliance.” (Emphasis added.) When multiple parties exist on the same side of the case (e.g., multiple claimants or multiple respondents): Any group of two or more aligned parties may agree in writing to a proxy procedure by which one party has authority to speak for the other members of that group for purposes of approving a modification or waiver of this Order under § 3.2.2. A copy of the written proxy-procedure agreement, signed by or on behalf of each member of the group, is to be served on all other parties and on the arbitrator. COMMENT: An agreed proxy procedure for approving modifications to the scheduling order could take the form of, e.g., requiring a majority vote of the group members on an issue-by-issue basis; it could also take the form of designating one member of the group, in advance, to speak for the other group members on one or more particular issues. 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