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July 27, 2023

Preliminary Hearings in Domestic Arbitration: The Arbitrator’s Perspective

Theo Cheng

The arbitration preliminary hearing (also known as a management conference or an initial conference) establishes a fair and orderly exchange of information between the parties throughout the proceeding and identifies early on any issues that might frustrate the process. By avoiding common errors and openly discussing time and cost efficiencies, the parties can satisfy their expectations about the arbitration process, including due process and fairness.

Governing Rules

A preliminary hearing is similar to a Rule 16(b) conference in federal court or an initial or preliminary conference in state court. The parties generally provide the tribunal (a single arbitrator or a panel of arbitrators) with a brief introduction of the dispute. The tribunal will then set a case management schedule, in consultation with the parties and/or their counsel, that will govern the exchange of documents and information in advance of the evidentiary hearing.

If an arbitral organization (e.g., the American Arbitration Association (AAA), JAMS, the International Institute for Conflict Prevention & Resolution (CPR), Resolute Systems) is administering your arbitration, the administering authority’s rules typically govern the preliminary hearing. See, e.g., AAA Commercial Arbitration Rules (Sep. 1, 2022), at Rule R-22; CPR Administered Rules (Mar. 1, 2019) at Rule 9.3; JAMS Comprehensive Arbitration Rules & Procedures (July 1, 2014) at Rule 16; Resolute Systems Commercial Arbitration Rules (Sept. 1993) at Rule 6. Some organizations also have templates, checklists, and other tools to help guide the discussions. See, e.g., AAA Commercial Arbitration Rules (Sep. 1, 2022), at Rule P-2; CPR Administered Rules (Mar. 1, 2019) at Rule 9.3(a)–(h); JAMS Comprehensive Arbitration Rules & Procedures (July 1, 2014) at Rule 16(a)–(i).

If your arbitration is not administered (i.e., an ad hoc arbitration), you may choose to conduct the arbitration under a set of ad hoc arbitration rules. The two most prominent sets of such rules are the CPR Non-Administered Arbitration Rules (Mar. 1, 2018) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (2010). Both contain provisions for holding a preliminary hearing, with the latter being more open-ended and leaving much to the tribunal’s discretion.

Setting the Agenda

The tribunal or an arbitral organization often will provide the parties with a tentative agenda for the preliminary hearing. Your preliminary hearing will run smoother and take less time if the parties agree on issues in advance, where possible, and also prepare to discuss areas of disagreement with the tribunal. This will also allow the tribunal to streamline the preliminary hearing and focus on any complex or disputed issues. If the tribunal does not issue an agenda, consider consulting any of the arbitral organization checklists to identify potential matters the tribunal may address at the preliminary hearing and/or requesting an agenda from the tribunal.

Hearing Format

Notwithstanding any specific agenda, the tribunal likely will cover the following topics with the parties: (a) the applicable law; (b) an overview of the dispute; (c) jurisdictional or arbitrability issues; and (d) case management scheduling.

Applicable Law

It is critical to confirm: (a) the applicable arbitration procedural statute (e.g., the Federal Arbitration Act (9 U.S.C. § 1 et seq.)); (b) the background procedural rules (e.g., AAA Commercial Arbitration Rules, employer-sponsored dispute resolution program rules); and (c) the substantive law governing the claims, counterclaims, and defenses. Some of these may be obvious from the arbitration agreement or clause. If not, make sure you explicitly discuss these topics, and that the tribunal memorializes the parties’ responses in the ensuing case management order. This will avoid confusion and uncertainty later in the proceeding.

Overview of the Dispute

Depending on the level of detail in the pleadings, the tribunal may ask you to provide a brief summary of the dispute outlining the claims and defenses at issue and articulating the damages or other relief sought. You should seize this opportunity to frame the facts and the issues for the tribunal. To ensure that the pleadings are timely closed, the tribunal will also set deadlines for the submission of any answering statements or replies and for interposing new claims, adding parties, or otherwise amending the pleadings.

Jurisdictional or Arbitrability Issues

The tribunal may also address any jurisdictional or arbitrability questions. Sometimes, it may simply be ascertaining that any preconditions to the arbitration mandated by the parties’ arbitration agreement or clause (e.g., a good faith negotiation or mediation process) have either taken place or been waived by the parties. Other times, there may be an underlying legal issue directed to the tribunal’s authority over the proceeding. Depending on the applicable law, either the tribunal or a court will resolve such issues.

Case Management Schedule

The preliminary hearing will provide the parties with a clear idea of the overall case management schedule and how the parties will move forward in the arbitral forum. The resulting case management order (also known as a scheduling or procedural order) will set forth how and when the parties will exchange documents and information, as well as prepare materials for the evidentiary hearing. The order will establish relevant deadlines and provide a mechanism for involving the tribunal when and if issues arise necessitating its intervention.

Preparing for the Preliminary Hearing

To prepare for your preliminary hearing, you should: (a) review your applicable arbitration agreement or clause; (b) identify the objectives you want to achieve; and (c) determine who should attend the preliminary hearing.

Review the Arbitration Agreement or Clause

Generally, there are three sources of authority that govern an arbitration proceeding: (a) the parties’ arbitration agreement or clause; (b) any applicable background procedural rules; and (c) the governing arbitration procedural statute. The primary authority is the arbitration agreement or clause, which expresses the parties’ intention to have disputes heard and decided in an arbitral forum. Some are quite detailed, specifying items such as the scope of the document and information exchange, the types of relief available, and the form of the award. Thus, it is important to carefully review the clause and its nature and scope in advance of participating in the preliminary hearing.

Identify the Objectives You Want to Achieve

Involving the client and ascertaining its objectives is an essential preparatory step. Among other things, you should consider investigating the underlying facts of the dispute; identifying the necessary evidence; evaluating your discovery needs; identifying potential witnesses; considering the need for expert testimony; determining the need for nonparty subpoenas; and assessing the need for interim relief. Try to anticipate and think through other issues that might arise, such as the need for motion practice, the use of interpreters, and scheduling constraints. Preparing for these issues in advance will help ensure that the proceeding unfolds smoothly, efficiently, and cost-effectively.

Determine Who Should Attend the Preliminary Hearing

The question of who should attend the preliminary hearing with you is a strategic one. Your client’s active participation can convey to the tribunal and the opposing side their seriousness about the dispute and the arbitration. You can have your client make proffers to the tribunal directly or participate in discussions about case management issues and how to conduct the proceeding so as to achieve a cost-effective and expeditious resolution. Having the tribunal hear directly from your client is a powerful way to help humanize the dispute, convey your client’s interests and concerns, and frame the issues for the tribunal.

Other Case Management and Organizational Matters

There are numerous other case management and organizational matters that the tribunal could raise during a preliminary hearing. Be prepared to address matters such as: (a) whether there is a need for any confidentiality or protective orders; (b) whether and to what extent the chair of the tribunal should act on behalf of the entire tribunal (e.g., to resolve information or document exchange disputes); (c) whether bifurcation or staging the dispute is either necessary or prudent; (d) whether any cybersecurity or privacy protocols should be adopted; (e) whether the parties anticipate dispositive motion practice and, if so, how the tribunal will handle that phase; (f) how many days to set aside for the evidentiary hearing and scheduling those dates; (g) the need for the tribunal to issue subpoenas (or summonses) for nonparty witnesses to appear and provide documents or testimony at the evidentiary hearing; (h) the parties’ preparation of final hearing materials (e.g., hearing subpoenas, hearing exhibits, stipulations of uncontested facts, pre-hearing briefs); (i) scheduling a final prehearing conference; (j) whether any witness needs to appear at the evidentiary hearing telephonically or by video; (k) the use of a stenographer’s or interpreter’s services during the evidentiary hearing; (l) whether any party will request attorneys’ fees and costs and how to handle the submissions relating to that request; (m) the parties’ preparation of post-hearing briefs; and (n) the form of the final award to be issued by the tribunal.

Theo Cheng

Arbitrator and Mediator

Theo Cheng is an independent, full-time arbitrator and mediator, focusing on commercial, intellectual property, technology, entertainment, and employment disputes. He is a AAA Master Mediator, a Fellow of the College of Commercial Arbitrators, a Member of the National Academy of Distinguished Neutrals, and a former chair of the New York State Bar Association Dispute Resolution Section. Mr. Cheng is also an Adjunct Professor at New York Law School where he teaches two ADR-related courses. He also has nearly 25 years of experience as a commercial and intellectual property litigator. More information is available at, and he can be reached at [email protected].

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