Arbitration
Arbitrator's Approach to Case Management
Organizations such as the American Arbitration Association (AAA), the Center for Conflict Prevention and Resolution (CPR) or JAMS sponsor Rules and Procedures to govern the Arbitration proceedings. There is nonetheless a great deal of flexibility that permits the Arbitrator and the parties to customize the process to best serve their needs. A link is provided to the Arbitration Rules and Procedures for ICDR/AAA, CPR and JAMS. I am experienced in using all of these Arbitration Rules, and depending on the Arbitration clause or source or the referral, I will discuss the best fit for the controversy.
I consider it important to highlight some of the preferences in my practice, to provide counsel with advance notice that may impact their Arbitrator selection process, and set the course for a fair and efficient Hearing.
Here are several procedural and process preferences that I recommend for Hearings where I serve as the Arbitrator.
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I regularly use Zoom Video Conferencing for Arbitration Management Conferences, Arbitration Pre-Hearing Conferences, and for the formal Hearing. I issue a video conference Instruction Manual that makes it easy for the minimally tech aware users to prepare for and participate in the video conference. By agreement, Video Conferencing can also be used to present witness testimony.
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Many of my Arbitration matters involve construction projects, or commercial disputes involving complex technology. When appropriate, I am a strong advocate for a site visit to the project site as a way to get perspective on the dynamics surrounding the dispute and the possible influence of site conditions.
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On discovery issues, I will listen to Counsel's need for discovery, but I am an advocate for staged, and proportionate discovery. I am experienced in managing ESI discovery.
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I request Narrative Witness Statements for all direct testimony of fact witnesses under the control of a party; prepared by counsel, signed by witnesses under oath and distributed in advance of the Hearing. I will permit live direct and cross examination of the witnesses at the Hearing, but request that counsel follow the general outline of the Narrative Witness Statements.
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From the Arbitrator’s Perspective: The Arbitrator's expectation is that the early exchange of prospective direct testimony of witnesses will focus the claims and defenses of the parties and reduce the cost or duration of discovery. When prepared early, and exchanged early, Narrative or Written Witness Statements can reduce the need for depositions of every party on a witness list, since the cross-examining party has detailed advanced notice of the each witness’ direct testimony. The opposing party can prepare for effective cross examination without the need to worry about surprise testimony.
Since the Arbitrator has a better understanding of the dispute, having the benefit of prospective witness testimony, the Arbitrator’s guidance on per-hearing matters is improved, and prepared to focus on the major issues at the formal Hearing.
I've found that having the Narrative in front of me during testimony permits me to concentrate on the testimony without the distraction of taking lengthy personal notes. I am well prepared for the Hearing, and feel confident in asking questions of witnesses and counsel. I try not to interrupt the flow of the proceeding, but I consider it critical that I understand all aspects of the case. The Narrative Witness Statements, along with my notes are more useful to me than a post hearing transcript.
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From the Claimant’s Perspective: The Narrative Witness Statement is the work product of your pre-Hearing preparation of your Witness’s testimony. Counsel can be confident all the material elements of the Witness’s testimony will be presented accurately and completely, while reducing the stress on the witness during direct examination at the Hearing. If you consider it necessary, you will be permitted to present the Witness for Direct Examination at the Hearing following the sequential numbering of the Narrative Witness Statement.
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From the Respondent’s Perspective: Since the Narrative Witness Statements are exchanged well in advance of the Hearing, the Respondent’s cross-examination can be prepared without time pressure, saving time, and perhaps improving the quality of cross-examination. The Respondent is also better prepared to present rebuttal witness testimony, as necessary.
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I have prepared several Articles on the use of Narrative Witness Statements in Commercial Arbitration as well as a Protocol, or set of guidelines and instructions for preparing Narrative Witness Statements. These Articles were initially published as the ADR Spotlight in the Detroit/Oakland/Macomb Legal News, and are also available on the blog section on the website of the Professional Resolution Experts of Michigan. Please download each document to better understand the details and benefits of this approach.
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When expert testimony is presented at the Hearing, I often suggest a protocol for Tandem Examination of Expert Witnesses. Counsel may present their Experts, along with conventional cross examination, but there is a structured process to permit opposing Experts to comment on the process, assumptions, conclusions and opinions of the Expert. Through experience, this technique insures that as the Arbitrator, I have a through and complete understanding of Expert testimony.
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During the Initial Management Conference, I tell the parties that I encourage Mediation prior to commencing the formal Arbitration Hearing and I support building a mediation phase into the schedule. I want the parties to know how highly I respect decisions that they can both agree upon as a wise decision.
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The importance of Early Consideration of Med-Arb. Since I have raised the topic of transitioning from Arbitration to Mediation, the parties are more likely to make the initiative to mediate at an appropriate time. Sometimes parties may request that I serve as Mediator, feeling my management of the pre-Hearing activities provides me with a perspective that would be valuable in Mediation.
I make it clear that as soon as we begin the Mediation phase, there are a number of procedural choices and commitments that need to be made. For example, I can begin the Mediation phase in joint session, with all parties present the entire time; if requested, I could also confer with each side separately. This is one of those decision point that need to be discussed, understood, and agreed upon, because should the Mediation efforts fail, the plan needs to be in place. In some cases I would then withdraw and a new arbitrator would be appointed to proceed with the Hearing. If however, the Mediation is conducted using only Joint Session, and there is no ex-parte communication, with appropriate acknowledgement, waiver and release, I may be able to continue as Arbitrator and make a binding Award. For further explanation of the ethical and practical issues involved in the Med-Arb process, and a step by step roadmap, please refer to my White Paper discussion on this website.
American Arbitration Association
Jerome Rock is a member of the American Arbitration Association and serves on the International (ICDR), Commercial, Construction and Large Complex Case Panels.
If the parties have already filed their Demand for Arbitration with the AAA, prospective Arbitrators may be selected by the parties, or appointed by AAA in one of the following ways.
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The parties may agree on an Arbitrator, and the AAA Case Manager will proceed with Conflict of Interest checks and administer the Arbitrator's Oath.
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The parties may request a list of qualified Arbitrators from the AAA, and the parties agree to an Arbitrator from that list without further assistance from the AAA Case Manager (referred to as List Only Service). The Parties perform their own Conflict of Interest checks and the Case Manager is not involved in collecting or disbursing fees.
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The parties may request a list of qualified Arbitrators from the AAA and select their Arbitrator with the assistance of the AAA Case Manager. This is the full service option. The parties may also request a customized pre-qualification process administered by the Case Manager. This may involve a suggested list of questions to be answered by prospective Arbitrators regarding experience with similar matters, subject matter qualifications, and procedural questions such as approach to case management, discovery requests or dispositive motions as well as conflicts of interest. The parties then receive the pre-qualified list of prospective Arbitrators, and go through a strike and rank exercise. The Case Manager will determine the selected Arbitrator, administer the Arbitrator's Oath, schedule Arbitration Management conference calls, send notice of Hearings as well as collect and disburse fees.
If you are filing a Demand For Arbitration, be aware that the AAA Rules for Commercial, Construction and Large Complex Cases provide that for matters over a certain dollar threshold (currently $100,000), the parties are directed to engage in Mediation of the dispute under the AAA Mediation Procedures. The Rules provide for the Arbitration and Mediation to proceed simultaneously, although the parties may agree otherwise.
I have been selected as Arbitrator in a case filed as a Demand for Arbitration, and the parties have agreed in advance, to proceeded with me as Mediator, and the matter proceeded to conclusion with a settlement at Mediation. I have also been initially selected as Mediator in cases filed as Demands for Arbitration, where the parties have agreed to proceed with me as initially as Mediator, and thereafter, by agreement, requested that I serve as Arbitrator if the matter did not resolve in Mediation. Counsel are urged to review their strategy within the AAA Rules dealing with the Mediation Procedures within the Arbitration Rules in advance of filing a Demand for Arbitration.
Professional Resolution Experts of Michigan
Jerome Rock is a principal member of the Professional Resolution Experts of Michigan, an invitation only group of Michigan’s top ADR professionals. Please view this website for additional information on dispute resolution, and bio information on additional neutrals.
National Center for Dispute Settlement
Jerome Rock is a member of the panel of Arbitrators for the National Center for Dispute Settlement. If the parties have already filed their case with the NCDS, the Arbitrator selection process is admistered by the Case Manager.
Private Arbitration
Jerome Rock also serves as a Private Arbitrator, in which case there are no Administration or Case Management services provided by a third party. This is referred to as Non-Administered or Private Arbitration. Along with the Arbitrator, the parties agree on the schedule, scope of discovery and document exchange, and the Arbitration Rules that will be used. If the parties agree to use the Arbitration Rules published by the American Arbitration Association the AAA will not provide any support to the Hearing if requested. The Arbitrator provides necessary scheduling and support for Arbitration Management Conference, processes Conflict of Interest disclosures and prepares the Arbitrator's Oath. All billing is handled between the Arbitrator and the parties.
Upon request, the following documents are available to support Arbitration Proceedings:
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Private Arbitration Retainer Agreement for Jerome Rock
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Contract Language for Agreement to Arbitrate
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Protocol for use of Narrative Witness Statements in Arbitration
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Protocol for Tandem Examination of Witnesses in Arbitration
Three Arbitrator Panels -
Commercial, Construction & Negligence Cases
Jerome Rock also serves as a panel Arbitrator in matters that benefit from his subject matter qualifications as an engineer and business executive, and his ability to understand and organize complex fact situations. He has served as Panel Chair in ICDR (international) as well as domestic arbitration Panels in Construction, Commercial and Large Complex Case cases. His practice has been limited to mediation and arbitration for the last 11 years, and been an arbitrator for over 30 years. He does not represent either Complainants (plaintiffs) or Respondents (defendants) in litigation matters and is therefore well suited to serve as the Neutral on panels where there are party appointed arbitrators. His practice is focused on commercial, technology, construction matters, but also serves as arbitrator for personal injury or negligence matters that arise out of construction accidents.
Please refer to the schedule of attorney references for additional information and assistance in evaluating the qualifications of Jerome Rock as a thoughtful and detailed member of your next three person arbitration panel.