Importance of Pre-Arbitration Conference
The initial pre-hearing conference launches the arbitration proceeding and sets the formality of it to the wishes of the arbitrator, parties, and counsel.
We have all heard it before - arbitration is just private court. And, for all intents and purposes it does serve that function. And while there are minimal requirements that must be met per the Code of Civil Procedure, there is quite a bit of flexibility in establishing the foundation, protocols, and overall expectations for this form of alternative dispute resolution.
With arbitration, there is flexibility in almost all stages/timing of the different steps found in civil litigation. Dependent upon the wants and desires of parties and counsel, and the patience and creativity of your arbitrator, the process for each step of "private court" can be altered quite significantly from litigation. Pleading practice could be completely eliminated. Adjudication can be limited to an A or B style choice (i.e. "baseball arbitration").
Where that all gets flushed out is at the pre-arbitration conference. While typically handled via telephone and/or remote video conference, this conference is the equivalent of the initial case management conference in litigation. However. it typically has an even more extensive agenda and opportunity to shape the arbitration you are entering.
What Happens at the Pre-Arbitration Conference?
The agenda for the initial pre-hearing conference will often begin with a discussion about the scheduling of the actual arbitration hearing. The scheduling is kind of done backwards, starting with the hearing date--or even post-hearing briefing dates--before progressing to the present date . That permits the parties to slot dispositive motions, expert witnesses, depositions, discovery, preliminary production, and pleading practice, accordingly, along the continuum of the timeline.
As such, the conference should include a discussion of:
whether any motions are immediately contemplated at an early date, and, if so, the scheduling of the hearing and the exchange of motion materials and Briefs;
the nature and delivery schedule for the exchange of pleadings. Pleadings should not consist of a skeletal overview, as one might expect to find used in litigation, but rather should be more detailed and thorough, possibly referencing evidence, and possibly having select important project documents attached;
the nature and extent of the parties’ documentary production, including the parties’ plan for the organization and exchange of document lists, and the parties’ intentions regarding scanning, coding, and electronic production. The parties are also encouraged to collaborate on the preparation of an electronic Book of Joint Exhibits (using a USB flashdrive or other such memory data storage device containing images of all such exhibits), properly indexed and consecutively numbered, for use at the arbitration hearing;
the intent of the parties with respect to the scheduling and extent of the oral examinations for discovery. Procedural rules of many provinces now dictate that such examinations, in a litigation context, should be limited to one representative of each party, and should not exceed seven hours in duration; and that restriction should inspire the parties to the arbitration to streamline their examinations in the same manner;
the disclosure of a preliminary list of witnesses by an early deadline date, followed in due course by the disclosure of the final list of witnesses. Aside from the obvious benefit to the parties of early disclosure of witnesses, this also assists the arbitral tribunal in revisiting their conflict of interest due diligence;
the intent of the parties with respect to the scheduling and extent of the oral depositions of fact witnesses (if this is to be undertaken);
the scheduling for (i) the designation of expert witnesses; (ii) the exchange of experts’ reports; and (iii) the intent of the parties with respect to the scheduling and extent of the oral depositions of expert witnesses(if this is to be undertaken);
the scheduling for the exchange and filing of the parties’ pre-hearing (and possibly post-hearing) Arbitration Briefs, as well as the electronic Book of Joint Exhibits and the USB flashdrive (or other such memory data storage device) which are to be used at the hearing;
the issuance of subpoenas for third party witnesses; and
the time required for the hearing itself, and the details of the parties’ requirements (e.g., size of boardroom? court reporter ? audiovisual equipment?)
After the initial pre-hearing conference, the arbitrator will usually issue a Procedural and Scheduling Order, which will generally serve to define the process and the timeline from that date forward until the hearing.
Sample Pre-Arbitration Conference Agenda
Below, please find a list of topics typically contained within an arbitrator's pre-arbitration conference.
Verbal description of the Parties’ positions on disputed issues
Schedule hearing date, with realistic evaluation of the length of the case.
Closing argument through briefing?
Schedule pre-hearing briefs, exchange of exhibits
Schedule exchange of documents between parties.
Schedule exchange of Witness Lists, if there are to be witnesses.
Schedule exchange of any other information, including any experts’ reports, if any.
Agreements regarding extent/scope of permissible discovery and discovery cutoff. Procedure for issuing subpoenas, if required.
Any other administrative issues the Parties or the Arbitrator may wish to discuss.