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

48 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1
offer the exhibit into evidence. 189
C. The Evidence
Arbitrators typically are not bound by State or Federal Rules of
Evidence. 190 Fundamental Fairness (Due Process) 191 requires that parties
be afforded the opportunity to present evidence 192 and defenses. 193 The
evidence at an arbitration hearing consists of testimony, paper exhibits,
the contract (with the arbitration clause), and real evidence, such as
examples of the shoddy merchandise. “Arbitrators are not bound to hear
all the evidence tendered by the parties; they need only afford each party
the opportunity to present their arguments and evidence.” 194 But the best
practice is to allow the parties to present the evidence they think is
important. 195
The arbitrator judges on the “weight and materiality of documentary
evidence.” 196 Because an arbitrator need not admit all evidence
presented by the parties, an arbitrator may exclude repetitious,
defamatory, or irrelevant evidence. The arbitrator may exclude hearsay
(e.g., “he said, that she said, that he said”) evidence upon objection of the
other side. Some arbitrators will permit all evidence “for what it’s
worth.” Because of Section 10 of the FAA, arbitrators will typically
189. David Crystal II, Anatomy of an Arbitration Case, in SECURITIES
ARBITRATION 1996, at 337, 362 (PLI Corporate Law, Course Handbook Series No.
B4-7147, 1996).
190. AAA Rules, supra note 37, R-31.
191. See AAA, Due Process Protocol, supra note 42. Arbitration due process in
the labor and employment setting is also now described as “industrial due process.”
See Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) (requiring
“industrial due process”); ELKOURI & ELKOURI, supra note 35, at 967 (stating
“arbitrators have fashioned an ‘industrial due process’ doctrine” in dealing
discipline and discharge cases).
192. Morgan v. United States, 304 U.S. 1, 18 (1938) (stating that “[t]he right to a
hearing embraces . . . the right to present evidence”).
193. Am. Sur. Co. v. Baldwin, 287 U.S. 156, 168 (1932) (recognizing that “[d]ue
process requires that there be an opportunity to present every available defense”).
194. Terk Techs. Corp. v. Dockery, 86 F. Supp. 2d 706, 709 (E.D. Mich. 2000).
195. 9 U.S.C. § 10(a)(3). Awards may be vacated “where the arbitrators were
guilty of misconduct in refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and material to the controversy; or
of any other misbehavior by which the rights of any party have been prejudiced.”
Id.
196. Kent B. Scott, Arbitration Advocacy Part Two: The Arbitration Hearing,
15-NOV UTAH B.J. 20, 21 (2002); see also Hart & Wolf, supra note 107, at 1448-
49.