Arbitrator Techniques and their (direct or potential) Effect on Settlement

The IMI/CCA/Strauss Institute Mixed Mode Taskforce have just published a series of articles on mixed mode dispute resolution in the New York Dispute Resolution Lawyer. These articles are reprinted with permission. The below article was produced by Working Group 4, and authored by Edna Sussman and Klaus Peter Berger.

Working Group 4 is hopeful that this work will enable arbitrators and parties to consider measures for promoting effective and efficient arbitrations within a framework that includes consideration of the impact process decisions might have on settlement.

Arbitration has always sought to be responsive to user preferences. Such amendments to institutional rules as emergency arbitrators, expedited arbitrations and consolidation and joinder illustrate the constant evolution of arbitration procedures in response to user calls for such innovations to meet their needs. In recent years, there has been a constant call for a more expeditious and costeffective dispute resolution process. Greater utilization of combinations of adjudicative and non-adjudicative processes has been repeatedly identified by users as preferred and as enabling the achievement of better outcomes. This led the Working Group to consider whether arbitrator and arbitration process choices might influence parties’ ability to arrive at amicable resolutions.

Accordingly, Working Group 4 titled “Arbitrator Techniques and Their (Direct or Potential) Effect on Settlement” was charged with assessing what procedural mechanisms might be used and what steps arbitrators could take, staying within their role as arbitrators, that may serve to have a favorable impact on the prospects of an amicable settlement among the parties.

The Task Force

Working Group 4 was comprised of approximately 25 practitioners from numerous jurisdictions around the world. Following discussion within the group, it was concluded that the group would address the utility of accepted case management techniques and arbitration procedures. The focus would be on the arbitrator staying within his or her role as an arbitrator and not switching hats by undertaking a role as a mediator which is the subject of Working Group 5.

A great deal has been written about steps to promote efficiency and cost reduction in arbitration. Measures such as tailoring the arbitration clause, opting into expedited procedural rules, using innovative ways to select the chair, phone calls instead of lengthy submissions, reducing the number of submissions, page limits, more vigorous control of document exchange, interim hearings, use of videoconferencing and other technological advances, use of the chess clock, etc., are all of great importance and serve in many ways to facilitate settlement.

However, in light of the many guides and articles on those subjects already available, the working group selected for examination a limited number of arbitration processes that are often underutilized but may directly or indirectly create opportunities for settlement. These measures include:

  • A proactive first organizational meeting in which all appropriate possible procedural steps are discussed with the parties rather than the usual pro forma short session to set the hearing date;
  • Including one or more mediation windows in the arbitration schedule so that there is a set time in the schedule for the parties to discuss whether a mediation would be p