Why Spend So Much Effort in Preparing for the Preliminary Hearing
The Preliminary Hearing shapes the integrity and success of the entire dispute process. How parties prepare for an arbitral hearing, and how opposing counsel work together to clear through as many issues in advance of the hearing as possible, will shape the course of a successful prelim and provide the foundation for a solid and fair outcome.
First and foremost, which you have probably accomplished prior to selecting the panel or the arbitrator, is determining the subject matter and procedural jurisdiction that will apply the scope of authority of the arbitrator(s), and the issues to be arbitrated.
The contractual provision will likely determine the outcome to these questions in part. However, what happens if a clause is ambiguous? In almost all cases counsel will work together to draft a fresh provision that is relevant and meaningful to the matter at hand, and not rely on a provision that may have been boiler plated text, added into the document at the eleventh hour – understanding the agreement may have been drafted 10 years, 20 years or 50 years ago.
Picking the hearing date may seem inconsequential. If agreed upon between the parties, this can assist in moving towards an early agreement on key procedural issues. In some cases the arbitrators are provided a range of dates to ensure availability as part of the arbitrator selection process; and in others the arbitrators will require the parties to agree on a date and select a venue in advance of the preliminary hearing.
The amount of time for hearing is also not inconsequential. Often parties will underestimate the amount of time required to put on its case in chief causing a fit over scheduling dates and the need to come back. It is a serious situation if the claimant puts on its case and the respondent is not left with adequate time to present its case until weeks and more likely months after the initial evidentiary hearing.
A skilled arbitrator will remind parties of this concern and it is important to say this is not about fees, this is about developing an adequate time period for a fair and honest presentation of each side’s case. Yes, only counsel knows how long it should take to put on its case – the arbitrator’s view, just to be safe, add an additional day.
One other area that must be addressed at the preliminary hearing is the question of motions. Litigation counsel is used to managing a motions practice and may not fully see any distinction with arbitration. In most cases, arbitrators are finding a tension between the public policy that is pushing for expedited time frames for hearing and final award, and achieving an expedited schedule when the parties desire to file a Motion for Summary Judgment and countless Motions to Compel.
Where does the answer lie?
Of course in party self-determination, and what the clients and counsel believe is warranted in any particular given case. It does not mean, however, that a skilled arbitrator should not push back a little here. I often strongly encourage a senior representative from each side to be at the preliminary hearing so they buy into these issues of scheduling Motions and the scope of discovery in advance, understanding that this may cause delays and additional cost to the effort.
We will address discovery and scope in another installment.