Preliminary Hearing Checklist for Arbitrations

Preparing for Arbitration: Effective preparation is essential for efficient arbitration. This guide walks parties and their attorneys through key decisions and tasks, from the preliminary hearing conference to the final award.

1. Document Preservation. Instruct your clients to preserve all relevant documents (paper and digital) for the arbitration and discovery process.

2. Related Parties and Conflicts Check. Confirm that all necessary parties have been joined in the arbitration. If not, what is the plan to bring them in? In addition, identify all related entities and individuals for purposes of the arbitrator’s conflicts check. Be sure to update the list during the arbitration’s progress so the arbitrator can make any appropriate disclosures.

3. Preliminary Hearing Conference (“PHC”). The PHC is a video conference in which scheduling and the other procedural matters will be addressed. It results in a Scheduling Order for the arbitration. In preparation, counsel need to consult with each other, their clients, and key witnesses to ensure all scheduling decisions at the PHC will be final; no changes should be needed unless an unexpected event occurs. Counsel for all parties must attend. I encourage clients to attend as they will appreciate the complexity of the process and their counsel’s efforts at efficiency and cost containment.

4. Hearing on the Merits. At the PHC, we will set the length, location, form (in person, virtual, hybrid), and dates of the hearing. Therefore, confer on these matters with opposing counsel and interested persons. Also discuss scheduling additional PHCs for discovery status and issues, motions, and final hearing preparation.

5. Claims & Issues. At the PHC, the parties will briefly outline the claims and issues in dispute. Before the PHC, determine what pleadings remain outstanding (including counterclaims and responses) and establish filing deadlines. Also determine whether the claims are adequately spelled out or whether an additional specification of claims or damages would be useful.

6. Governing Laws. Arbitration is a matter of contract. (i) The relevant clause in the parties’ contract or submission agreement governs the scope and terms of the arbitration. (ii) If there is an administering authority for the arbitration, that authority’s rules supplement the arbitration clause. The parties can also agree on other rules, such as those of the International Bar Association. (iii) Other procedural matters are covered by the laws of the arbitration location. This typically means the State arbitration act, but international disputes and matters concerning interstate commerce are usually governed by the Federal Arbitration Act. (iv) At the PHC, the parties will confirm the applicable substantive law or describe any dispute over substantive law.

7. Motions and Additional Filings. Arbitrations use a more streamlined process than litigation. If either side expects to present Motions for Interim Relief, Challenges to Jurisdiction, or Motions for Summary Disposition, raise that intention at the PHC. Parties must request permission from the arbitrator to file a motion and obtain the arbitrator’s authorization. Agree on intended filings, dates, and timetables. For dispositive motions, parties must demonstrate that the motion will achieve net savings in time, effort, and expense compared to presenting the issue at the merits hearing.

8. Discovery and Subpoenas. In addition to the expected voluntary exchange of known relevant documents and identification of persons with relevant knowledge, what other discovery is necessary to have a fair hearing in this matter? Typical timeline: exchange documents and identify potential witnesses 45 days after the PHC, unless you agree otherwise. Parties may agree on any other discovery that would be appropriate and proportional to this dispute. Note that interrogatories are generally not allowed, and depositions should be limited in number, scope, and length. Arbitration is efficient only if we operate in a cost-effective manner and do not follow the Federal Rules of Civil Procedure. If subpoenas expected, agree on the timing for requests and oppositions.

9. Confidentiality and E-Discovery. Protective orders, cybersecurity, electronic discovery, and data protection do not need to be decided at the PHC, but all counsel need to discuss them and inform me at the PHC whether special measures or agreed orders will be expected. Administering authorities usually have guidelines, but the parties may by agreement also add their own reasonable restrictions on e-discovery production scope, content, and format, as well as addressing the other matters. A good confidentiality order template is available on the website of the U.S. District Court, Western District of Washington.

10. Communication. Unless you opt out, we will use e-filing notifications and email for all communications. If opting out, discuss alternatives at the PHC. If you do not opt out, we will need a list of emails for all individuals to be notified in email correspondence among counsel and the arbitrator. Note that all communications with the arbitrator must include all other parties.

11. Mediation. Has mediation been conducted or is it to be scheduled? If to be conducted, should the arbitration continue at the same time or be stayed pending the mediation?

12. Prehearing Deadlines. Confer with opposing counsel and set deadlines for the following items in addition to the matters discussed above:

a. Initial exchanges of witness lists, exhibit lists and exhibits, deposition testimony designations/counter-designations.

b. Expert designations and reports.

c. Motions regarding any unresolved discovery disputes.

d. Completion of all discovery.

e. If permitted by the arbitrator, deadline for the filing of dispositive motions.

f. Requests for witness subpoenas for the hearing.

g. Joint Statement of Evidence.

h. Stipulation of Agreed Legal Issues.

i. Final witness and exhibit lists.

13. Hearing Management. The parties should agree on joint exhibits and avoid duplicate exhibits. In addition, the parties should confer and agree on the following:

a. Determine need for court reporter or interpreter.

b. Deadline for filing hearing briefs and exhibits.

c. Form of exhibits. I prefer receiving exhibits in a digital form that can be highlighted. If using physical exhibit books, determine the number of exhibit sets and color coding.

d. Start and stop times, notice of next-day witnesses, allocation of time.

e. Presentation of evidence in the most efficient manner. For example, it might make sense to have experts testify back-to-back, or even at the same time. You also can decide to present direct evidence in written form and restrict live examination to cross-examination.

f. Statement of relief requested to be submitted with the briefs; can be amended at close of evidence presentation.

14. Attorney’s Fee Claims. Claims for an award of attorney’s fees must be included in the claim or counterclaim filed in the arbitration. The basis must be stated as well. Any claim for attorney’s fees will be addressed after the substantive claims are decided. After an interim decision on the merits claims, the hearing will remain open for the filing of an application for fees, any opposition thereto, and a reply. Usually, the issue will be decided without oral argument.

15. Form of Award. Unless specified by the arbitration clause, we must decide whether the Award will be a “standard award” (decision and relief only), a “reasoned award” (accompanied by a full explanation), or “findings of fact and conclusions of law.” Typically, a Reasoned Award meets the needs of counsel and parties, but you may agree on a different form of award.