2006/Vol. 5 No.1 - Hamline Law - Hamline University

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36 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 would have taken to litigate the case in court. 148 If a dispute cannot be heard and settled by arbitration much sooner than it would be heard and decided in court, arbitration looses its efficacy. Delay usurps the promise of arbitration as “quick, efficient, economical and fair.” 149 H. Time Required There is a tendency on the part of advocates to underestimate the amount of time required for the arbitration. 150 It is not unusual for an advocate to inform the arbitrator that the hearing “will last, at most, one day.” But experience has shown that more than one day might be required for even some of the simplest matters. Advocates need to be aware of the fact that arbitration may require a more significant time commitment than expected and should avoid understating to the parties and the arbitrator the time needed to resolve the dispute. Remember, it takes time for the question and answer method of direct examination and cross examination to develop the testimony. Be realistic in the estimate of the entire time for the arbitration by knowing the number of witnesses and the approximate time it will take for direct examination and cross examination of each of the witnesses. Many agencies permit expedited arbitration which limits the time an arbitration can run—typically, one day. VI. PRE-ARBITRATION MATTERS A. Discovery A primary reason parties choose arbitration is to avoid the expense and time involved in the discovery necessary to prepare a case if it went to court. The arbitration process attempts to avoid extensive discovery that is often involved in a trial. There is very limited discovery in arbitration. The United State Court of Appeals for the Fourth Circuit recognized that “[a]n arbitration hearing is not a court of law . . . . When contracting parties stipulate that disputes will be submitted to arbitration, they relinquish the right to certain procedural niceties that are normally associated with a formal trial . . . . One of these accoutrements is the right 148. Allen Poppleton, The Arbitrator’s Role in Expediting the Large and Complex Commercial Case, 36-DEC. DISP. RESOL. J. 6 (Dec. 1981). 149. See text accompanying notes 33-44. 150. John Wilkinson, Streamlining Arbitration of the Complex Case, 55 DISP. RESOL. J. 8, 10 (Oct. 2000).
2006] ARBITRATION: THE BASICS 37 to pre-trial discovery.” 151 Civil court trials in the United States often involve extensive discovery, using interrogatories, depositions, and requests for production of documents. Arbitration involves some discovery, but it is intended to be limited because arbitration is a process intended to expedite the resolution of the dispute. A telephone conference between the arbitrator and advocates can deal with almost any discovery matter that needs to be addressed. The AAA describes the discovery process this way: At the request of any party or at the discretion of the arbitrator, consistent with the expedited nature of arbitration, the arbitrator may direct the production of documents and other information, and the identification of any witnesses to be called. At least five business days prior to the hearing, the parties shall exchange copies of all exhibits they intend to submit at the hearing. The arbitrator is authorized to resolve any disputes concerning the exchange of information. 152 B. Subpoena Power of Persons and Materials An arbitrator in the United States is given the power to subpoena a person or materials, and such subpoenas are enforceable in a court of law. The Federal Arbitration Act permits an arbitrator to issue a subpoena requiring a person to testify at the arbitration or a subpoena duces tecum to bring materials to the arbitration. 153 The Uniform Arbitration Act (UAA) 154 and the Revised Uniform Arbitration Act of 151. Burton v. Bush, 614 F.2d 389, 390 (4th Cir. 1980). 152. AAA Rules, supra note 37, R-21. 153. 9 U.S.C. § 7 (2004) (stating that an arbitrator “may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case”). 154. UNIFORM ARBITRATION ACT (1956), available at http://www.law.upenn.edu /bll/ulc/fnact99/1920_69/uaa55.htm (last visited Nov. 7, 2005). Prior to the Revised Uniform Arbitration Act (RUAA) (2000), the UAA (1956) was adopted by fortynine of the states in the United States. CARBONNEAU, supra note 14, at 113. Several states have repealed adoption of the UAA in favor of the RUAA. REVISED UNIFORM ARBITRATION ACT § 17(a), amended 2000, available at http://www.nccus l.org/update (last visited Nov. 7, 2005). As of 2004, the RUAA has been adopted by twenty-eight states and the District of Columbia in some form (also, Oklahoma has enacted legislation to adopt the RUAA in 2006). UNIFORM LAWS ANNOTATED, ARB., REFS & ANNOS, UNIFORM ARBITRATION ACT (1956) REFS & ANNOS, (current through 2004 Annual Meeting of the National Conference of Commissioners on
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