Presiding over an Arbitration with a Pro Se Party: The Arbitrator’s Perspective

When a party participates in an arbitration without the assistance of counsel, or pro se, the solo arbitrator or panel chairperson presiding over the proceedings faces unique challenges to ensure:

• The unrepresented party:
  • understands the proceedings; and
  • has a full and fair opportunity to present its case.
  • The arbitration proceeds efficiently and fairly to all parties.

The rules of most major U.S. arbitral institutions permit but do not require a party to be represented by counsel. These rules include:

• Rule R-26 of the American Arbitration Association (AAA) Commercial Arbitration Rules and Mediation Procedures (AAA Commercial Rules).
• Rule 12 of the JAMS Comprehensive Arbitration Rules and Procedures (JAMS Rules).
• Rule 12208(a) of the Financial Industry Regulatory Authority (FINRA) Code of Arbitration Procedure for Customer Disputes (FINRA Customer Rules).
• Rule 13208(a) of the FINRA Code of Arbitration Procedure for Industry Disputes (FINRA Industry Rules).
• Rule 4 of the International Institute for Conflict Prevention and Resolution (CPR) Administered Arbitration Rules (CPR Domestic Rules).

The rules are silent, however, regarding any special considerations for an arbitrator to note when dealing with an unrepresented party. The arbitrator cannot assume the role of counsel for the pro se party by instructing the party on any substantive matters, but the arbitrator must explain each phase of the arbitral process in sufficient detail to ensure an efficient and fair process. The AAA has a special team of case administrators handling pro se cases. Therefore, in AAA cases, the arbitrator should rely on the case administrator, where appropriate, to guide the pro se party through the rules and procedures.

This article provides guidance for the arbitrator presiding over a case where one or more parties is pro se. It describes factors the arbitrator should consider throughout the proceedings and explains the best practices for an arbitrator to provide an arbitral process that is full, fair, and efficient for all parties.

The Pre-Hearing Phases of the Arbitration

Under the rules of the major U.S. arbitration institutions, the arbitrator has the authority to control the arbitration proceedings (AAA Commercial Rule R-32, JAMS Rule 22, FINRA Customer Rule 12607, FINRA Industry Rule 13607, and CPR Domestic Rules 9.2 and 12.1). The arbitrator’s control of the case starts with the arbitrator’s appointment and continues until the arbitrator issues the award at the end of the case.

Most arbitral institutions provide the prospective panelists with the names of parties and their counsel, if represented, when the institution first queries potential arbitrators about their availability and willingness to serve on the panel.

From this preliminary case information the arbitrator should note whether any party is unrepresented and prepare from the outset to conduct the pre-hearing phases of the arbitration in a way that takes into account the needs of the pro se party.

The Preliminary Conference

The arbitrator’s first direct contact with the parties occurs at the preliminary conference, also sometimes called a preliminary hearing. The arbitrator’s handling of the preliminary conference often sets the tone for the arbitrator’s dealings with the parties for the remainder of the case. Therefore, the arbitrator presiding over a preliminary conference with a pro se party must strike a balance between:

• Setting a professional tone and decorum.
• Accommodating the unrepresented party’s special needs due to its unfamiliarity with the process.

At the preliminary conference, which is usually a telephonic conference call, the arbitrator and the parties confer to lay the framework for the remainder of the arbitration, including:

• Identifying each party and counsel for the represented party.
• Confirming:
  • the arbitrator’s receipt of all pleadings;
  • the parties’ acceptance of the panel; and
  • the institutional rules that govern the proceeding.
• Inquiring whether any party intends to:
  • seek joinder of any third parties;
  • amend any pleading;
  • assert a crossclaim or counterclaim; or
  • submit a dispositive motion.
• Setting a schedule for:
  • any motions;
  • discovery; and
  • the merits hearing.
• Determining the logistics of the merits hearing, including:
  • the location;
  • the number of days; and
  • whether there is to be a stenographer.
• Agreeing on the form of award.

The arbitrator presiding over a preliminary conference with a pro se party should be sensitive to the fact that a pro se party may be unfamiliar with the arbitration process. The topics of discussion and arbitration jargon experienced practitioners use during the preliminary hearing may be difficult for a pro se party to understand. The arbitrator must ensure the pro se party understands and makes an informed decision about each topic of discussion. For example, an arbitrator may need to explain what crossclaims and counterclaims are before asking if any party intends to submit one. Certain procedural devices, such as dispositive motions, also may be inappropriate where a party is pro se, because the party is not likely to submit a meaningful motion or opposition (see Motions, below).

Once the arbitrator confirms the rules governing the arbitration, the arbitrator should:

• Ask whether all parties have a copy of the rules.
• If any party does not have a copy of the rules, either:
  • identify the website address where the party can find a copy of the rules; or
  • ask the institutional case manager to send a copy of the rules to the party.

Ensure the Pro Se Party Understands Its Right to Representation

At the start of any preliminary conference where a party appears without counsel, the arbitrator should confirm the party is in fact proceeding pro se and explain the party has a right to:

• Retain a lawyer at any time.
• Proceed without a lawyer.

Making this kind of statement at the start of the preliminary conference and memorializing it in the preliminary hearing order (see Preliminary Hearing Order, below), help maintain the integrity of the arbitral process and ensure the eventual award is not subject to challenge, because it:

• Gives the pro se party an opportunity to consider retaining counsel.
• Confirms the pro se party’s knowing decision to participate in the arbitration without the assistance of counsel.
• Notifies counsel for the other party that the arbitrator is aware the pro se party is unrepresented and may ward off any attempts by counsel to take advantage of the pro se party throughout the proceedings.

The AAA has published Find an Attorney or Other Legal Representation to assist pro se parties. The arbitrator may direct the party to this document.

Although the arbitrator should emphasize the pro se party has a right to representation, the arbitrator should not advise the party that it should retain counsel or make any other statements that may arguably constitute legal advice.

Consider Whether to Have the Parties Briefly Describe the Case

Before discussing scheduling, the arbitrator often asks counsel for each party to provide a brief summary of the party’s position. This practice allows the arbitrator to:

• Confirm the arbitrator’s understanding of the pleadings.
• Begin to get to know counsel for each party.
• Gauge how well the attorneys get along with each other.

The arbitrator presiding over a preliminary hearing with a pro se party should consider whether this customary practice is advisable. Despite the relative informality of a teleconference, a pro se party may be uncomfortable speaking in this setting, especially if counsel for the other party speaks first and uses legal or arbitration jargon. The pro se party also may misunderstand the purpose of this presentation and assume it is the party’s opportunity to argue its case in full.

If the arbitrator decides to have the parties briefly summarize their positions, the arbitrator should:

• Caution the participants to be brief.
• Explain that each party is given the opportunity to present its case in full at the merits hearing.
• Be lenient with the pro se party but be prepared to interrupt if the party begins to make an extended presentation, especially if the party strays from a presentation of relevant facts.

Explain Disclosure

A party unfamiliar with arbitration or litigation generally may not understand the nature of the pre-hearing exchange of information, which arbitration practitioners often refer to as disclosure. When discussing disclosure during the preliminary hearing, the arbitrator may need to explain that the pro se party has:

• The right to request documents or information from the other party.
• The obligation to preserve and provide documents or information the other party requests.

After explaining disclosure, the arbitrator should set dates for the parties to request and produce documents and information. Some institutional rules provide detailed guidelines regarding:

• Documents that are presumptively discoverable (see, for example, FINRA Discovery Guide, listing documents that each side must produce in a FINRA customer arbitration and FINRA Customer Rule 12506(a)).
• Strict deadlines for completing disclosure (for example, JAMS Rule 17(a) (requiring certain disclosures immediately after the arbitration starts and the completion of all disclosure within 21 days after each party receives notice of all claims)).

The arbitrator may need to relax certain disclosure deadlines under the rules if a pro se party is incapable of timely providing the required disclosure. The arbitrator also may need to discuss and approve informal methods for the parties to make and respond to disclosure requests. For example, the arbitrator may permit parties to make requests by email rather than a formal captioned document. The arbitrator should clarify that the parties may bring disclosure disputes to the arbitrator throughout the pre-hearing phase of the case (see Disclosure Disputes, below).

Disclosure of electronically stored information (ESI) can be difficult for seasoned practitioners, much less a pro se party. Without guidance, a pro se party with no more than a layperson’s understanding of digital technology:

• May not understand:
  • the other party’s ESI requests;
  • what kind of information to request; or
  • the format to request or produce (for example, native format, static images, and so on).
• Is not likely to conduct a thorough ESI collection in response to the other party’s requests.

It is not the arbitrator’s role to provide the guidance a pro se party may need to understand ESI disclosure, but the arbitrator also must ensure the represented party does not take advantage of the pro se party’s inexperience with ESI. The arbitrator should therefore monitor any ESI disclosure. The arbitrator should discuss with the parties at the preliminary hearing the extent to which the parties need or want disclosure of ESI and, if they do, the arbitrator should consider either:

• Devising ground rules at the preliminary hearing for the ESI disclosure.
• Requiring the parties to complete nonESI disclosure first and setting a conference call to set ground rules for ESI disclosure if still necessary (see Disputes Over ESI Disclosure, below).

If counsel raises the possibility of taking depositions, the arbitrator should explain briefly what a deposition is but discourage the parties from taking depositions, which are rare in U.S. arbitration. The JAMS Rules permit each party to take one deposition of the opposing party (JAMS Rule 17(b)). The rules of CPR, FINRA, and the AAA (for Large, Complex Commercial Disputes) expressly discourage the use of depositions or provide for the parties to take depositions only in limited circumstances (CPR Domestic Rule 11, FINRA Customer Rule 12510, FINRA Industry Rule 13510, and AAA Commercial Rule L-3(f)).

Depositions are expensive for both parties, so the arbitrator should permit depositions only if both parties want them and the depositions are likely to be productive. If the unrepresented party conducts the examination, a deposition can be a waste of time and money, resulting in a transcript that is confusing and uninformative. Even in cases governed by institutional rules that permit depositions, the arbitrator should consider allowing depositions only if either:

• Both parties want them.
• The parties cannot access the information they need to present their cases without depositions.

Explain Motion Practice

An unrepresented party also may not understand the nature and function of a motion. The arbitrator should be prepared to explain that a motion is simply a party’s written request for the arbitrator to do something, such as a request to dismiss the case. Some institutional rules require a party to request leave to submit a dispositive motion before submitting the motion. When discussing motion practice during the preliminary hearing, the arbitrator should:

• Identify the institutional rule on motions.
• Briefly explain the process for making a motion, including any requirement under the rules that the movant obtain the arbitrator’s permission to submit a motion.
• Encourage the parties to bring nondispositive requests to the arbitrator informally, for example by email.
• Discourage the parties from making dispositive motions.

(See Motions, below.)

Orders Regarding Exhibits and Pre-Hearing Exchanges

The arbitrator at the preliminary hearing usually directs the parties on:

• The dates by which the parties must exchange:
  • exhibits they intend to present at the merits hearing; and
  • their lists of the witnesses they intend to call at the merits hearing.
• The format for exhibits the parties intend to present at the merits hearing.

When one of the parties is unrepresented, the arbitrator may need to explain these matters in detail. For example, a pro se party inexperienced in litigation may not understand that:

• The documents the parties produce in disclosure are not necessarily the hearing exhibits.
• The parties typically produce many documents that the parties do not eventually submit as hearing exhibits.

The arbitrator also may need to explain that the parties may not surprise each other with previously unidentified witnesses or documents at the merits hearing.

The arbitrator’s order regarding parties’ compilation of hearing exhibits may pose a difficult challenge. To streamline the proceedings and avoid duplication of exhibits, arbitrators often ask the parties to compile a single joint set of numbered exhibits. Counsel for a represented party is usually accustomed to working cooperatively with counsel for the opposing party to compile the joint exhibits. However, depending on the level of litigation experience and resources of the unrepresented party, it may not be feasible or advisable to have the parties work together to compile a joint set of exhibits. The arbitrator should therefore be prepared to have each side compile its own exhibits or have the lawyer assemble a joint exhibit book, including all documents the pro se party wants the arbitrator to consider.

Discourage Pre-Hearing Briefing

Arbitrators often allow or require the parties to submit pre-hearing briefs summarizing their expected evidence and the legal basis for the relief they seek. In a case with an unrepresented party, however, permitting or requiring pre-hearing briefs may result in an unequal playing field because:

• If the briefing is permissible but not required, the pro se party may decide not to submit one while the represented party is certain to submit one.
• If the briefing is mandatory, the pro se party is not likely to submit a brief that is helpful to the arbitrator or aids the party’s cause.

Before ordering or permitting the parties to submit pre-hearing briefs, the arbitrator should consider whether the briefing:

• Can assist the arbitrator in understanding the case.
• Unfairly benefits the represented party.
• Unfairly burdens the pro se party.

Set Realistic Hearing Dates

When setting dates for the hearing, the arbitrator may need to provide a reality check for a pro se party that wants the merits hearing to start promptly and proceed quickly, especially if the pro se party is the claimant. A pro se party that is inexperienced with litigation is not likely to have a realistic concept of:

• How long the pre-hearing phase of a case may take.
• How many days the merits hearing may take.

The arbitrator must take care to avoid scheduling the hearing too soon or setting too few hearing dates. Cutting short the time available for the parties to gather their evidence and present their cases poses a risk to the integrity of the eventual arbitral award. Having to choose new hearing dates in the middle of the merits hearing can cause substantial delay. Therefore, the arbitrator presiding over a case where a pro se party requests unrealistic hearing dates should:

• Listen respectfully to both parties’ suggestions regarding the timing and duration of the hearing.
• Use the arbitrator’s own judgment in setting the hearing dates.

Communications Between Parties and the Arbitrator

The arbitrator should consider the best way for the parties to communicate with the arbitrator. Some of the institutional rules permit parties to communicate with the arbitrator either:

• Through the institution’s case manager assigned to the case.
• Directly by email or fax.

(AAA Rules R-43(b) and JAMS Rule 14(a).)

JAMS also permits parties to use the JAMS Electronic Filing System to communicate with the arbitrator and each other. FINRA has a web-based Party Portal for parties to use for document filings and communications with the panel (FINRA Customer Rules 12100(t) and 12300(a)(1) and FINRA Industry Rules 13100(t) and 13300(a)(1)). A pro se customer claimant in a FINRA customer dispute may elect not to use the Party Portal. However, if the pro se customer uses the Party Portal at any point in the case, it must use the portal for the remainder of the case. (FINRA Customer Code 12300(a).)

Some arbitrators routinely require parties to communicate only through the case manager, out of a concern that the parties may abuse the direct communication method by sending the arbitrator information the arbitrator need not or should not see. This concern may be heightened when dealing with a pro se party that may not understand that the arbitrator does not need or want to hear from the parties until there is a dispute to resolve. Conversely, a pro se party may be unfamiliar or uncomfortable with using an institution’s web-based filing and communication platform.

When deciding the best method for communicating in a case involving a pro se party, the arbitrator should:

• Discuss the various communication options.
• Ask the parties for their preference.
• If the arbitrator permits direct communications, emphasize during the preliminary hearing and in the preliminary hearing order that:
  • the parties should not copy the arbitrator on their communications between each other;
  • no party may email the arbitrator unless it copies all other parties and the case manager; and
  • the parties must send questions about the rules or case administration to the case manager, not the arbitrator.

Preliminary Hearing Order

After the preliminary hearing, the arbitrator issues an order memorializing the matters the participants discussed and the scheduled dates for the remainder of the case. The arbitrator presiding over a case involving a pro se party should memorialize not only the discussion topics and scheduled dates but also that:

• The unrepresented party is pro se.
• The arbitrator advised the pro se party of its right to retain counsel at any time.
• The arbitrator either:
  • identified the website address for the parties to obtain a copy of the arbitration rules; or
  • asked the case manager to send the parties a copy of the arbitration rules.

The preliminary hearing order should also set out the arbitrator’s orders regarding the nature and scope of disclosure, such as:

• Whether the parties may take depositions, including any conditions or limits on depositions.
• The arbitrator’s ruling on ESI, including:
  • any conditions or limits on ESI requests and collection procedures; or
  • the date and time for a later preliminary hearing following the parties’ completion of nonESI disclosure, where the arbitrator may determine whether to allow ESI disclosure.

Disclosure Disputes

The arbitrator should be available throughout the case to resolve any disputes over disclosure.

Disputes over NonESI Disclosure

The institutional rules all provide for the arbitrator to manage the parties’ of exchange documents and information before the merits hearing (AAA Rule R-22, JAMS Rule 17, CPR Domestic Rule 11, CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration, FINRA Customer Rule 12506, and FINRA Industry Rule 13506). The rules also require the arbitrator to provide each party with a full and fair opportunity to present its case (see AAA Commercial Rule R-32(a), JAMS Rule 22(d), FINRA Customer Rule 12607, and FINRA Industry Rule 13607; and also 9 U.S.C. § 10 (grounds to vacate arbitration award includes arbitrator misconduct in refusing to hear evidence or otherwise prejudice the rights of a party)).

When all parties are represented by counsel, they may complain about having to produce documents but their counsel is usually able to conduct a reasonably complete document production. A pro se party, however, may find a document production much more logistically challenging. When resolving a disclosure dispute involving a pro se party, therefore, the arbitrator must be especially sensitive to the pro se party’s limitations and attempt to:

• Allow sufficient disclosure to enable the requesting party to present its case in full.
• Avoid the request placing an unfair burden on the pro se party.

Disputes over ESI Disclosure

The arbitrator does not need to permit ESI disclosure just because one party requests it, if the arbitrator believes producing ESI is likely to place an unfair burden on the other party.

If the represented party requests ESI and the pro se party resists or cannot comply without incurring the expense of hiring an expert to perform the collection, the arbitrator should balance:

• The requesting party’s need for the ESI.
• The availability of the information from nonESI sources.
• The importance of the ESI to the case.
• The parties’ relative:
  • technical sophistication; and
  • financial resources.

If the arbitrator determines the requesting party has a legitimate need for ESI that a pro se party is technically incapable of producing without assistance, the arbitrator may consider conditioning the production of the ESI to level the playing field, such as requiring the requesting party to:

• Hire a third-party vendor to collect the pro se party’s ESI.
• Pay all or a portion of the cost of the third-party vendor, subject to later apportionment in the final award.

Motions

Most institutional rules permit a party to submit a dispositive motion (AAA Rule R-33, JAMS Rule 18, CPR Domestic Rule 8.1 and 8.2, and CPR Guidelines on Early Disposition of Issues in Arbitration (CPR Guidelines)). The FINRA rules expressly discourage dispositive motions before the end of a party’s case in chief (FINRA Customer Rule 12504(a)(1) and FINRA Industry Rule 13504(a)(1)). In AAA and CPR arbitrations, a party must have the arbitrator’s permission to submit a dispositive motion (AAA Rule R-33and CPR Guideline 3).

In a case involving a pro se party, the arbitrator should:

• Encourage the parties to bring nondispositive applications to the arbitrator informally, for example by email.
• Discourage the parties from engaging in any dispositive motion practice.

A pro se party:

• Is likely ill equipped to formulate and draft either a motion or an opposition to a motion.
• May be intimidated by the motion papers from the represented party.

Unless there is a compelling reason to entertain a dispositive motion, the arbitrator should deny a party’s request to submit a dispositive motion in a case involving a pro se party and require the parties to present their arguments and proofs at a merits hearing.

The Merits Hearing

The merits hearing is the place for the parties to present their arguments and proofs. There are several housekeeping matters that the arbitrator should address at the start of the merits hearings to maintain an orderly and productive hearing.

Introductory Comments by the Arbitrator

Although there is usually no need for the arbitrator to explain how the merits hearing proceeds when parties are represented by counsel, the arbitrator presiding over a merits hearing involving a pro se party should start the hearing by explaining the process.

The arbitrator should explain that:

• The claimant presents its case first, followed by the respondent.
• Parties present their cases by:
  • calling their witnesses to testify;
  • asking their witnesses questions; and
  • introducing exhibits for the witnesses to discuss.
• The parties themselves may testify if they choose.
• Each side may question a witness after the party that called the witness completes its examination.
• The formal rules of evidence do not apply (see Ruling on Evidentiary Objections, below).

The arbitrator should also explain that the arbitrator may not have any contact or communication with one party unless the other party or its counsel is present. Without this explanation, the pro se party may misunderstand the arbitrator’s avoidance of ex parte contact, such as when the arbitrator leaves the hearing room or refuses to get onto an elevator if only the pro se party is present.

Attendance

Before the hearing starts, the arbitrator should clarify which parties may and may not be present in the hearing room during testimony. Parties and their counsel always have the right to attend every arbitration hearing session, even if the party intends to be a witness (see, for example, AAA Rule R-25, FINRA Customer Rule 12602(a), FINRA Industry Rule 13602(a), and JAMS Rule 26(c)). The rules do not require the sequestration of nonparty witnesses, but many arbitrators sequester witnesses if a party requests it.

A pro se party may be more comfortable during the hearing if accompanied by someone the party knows and trusts, such as a spouse or trusted friend. The arbitrator should permit the nonparty to remain in the hearing room over any objection by the represented party.

Ruling on Evidentiary Objections

Arbitrators are not required to adhere to formal rules of evidence, but they must honor the applicable privilege rules (AAA Commercial Rule R-34(c), JAMS Rule 22(d), CPR Domestic Rule 12.2, FINRA Customer Rule 12604(a), and FINRA Industry Rule 13604(a)). Attorneys are accustomed to working with the rules of evidence even in arbitrations, but a pro se party is not. Therefore, when the arbitrator presides over a merits hearing with an attorney voicing evidentiary objections to a pro se party’s examination or exhibits, the arbitrator should allow the pro se party maximum leniency.

The arbitrator must ensure the hearing is fair and the parties present their proofs on a level playing field. Counsel’s constant interruption of the pro se party’s examination with formal objections may be intimidating to the pro se party. The arbitrator should generally allow the pro se party to pose its questions unimpeded and resist any temptation to take over the pro se party’s examination. The arbitrator may ask follow up questions if necessary, but the arbitrator should wait until all parties have completed their examinations of the witness before asking questions.

If counsel objects to a party’s introduction of an exhibit that is inadmissible under the usual evidentiary rules, such as an email that is clearly hearsay, most arbitrators accept the document despite the hearsay and accord it the weight the arbitrator considers appropriate. When dealing with a pro se party, the arbitrator should never exclude a document due to an evidentiary rule.

Maintaining Order

The arbitrator should permit each party to present its case as the party sees fit. However, the arbitrator is responsible for controlling the proceedings and may limit testimony to exclude cumulative or immaterial evidence (AAA Commercial Rule R-34(b), JAMS Rule 22(d), CPR Domestic Rule 12.1, FINRA Customer Rule 12604(a), and FINRA Industry Rule 13604(a)). The arbitrator also must afford each party the opportunity to present its case without undue interruption.

Arbitration is not as formal as court proceedings, but the arbitrator should take measures to ensure that all participants maintain a professional decorum. Tempers can flare and parties or their counsel may become emotional at times. If the hearing starts to devolve into arguments or cross-talk, the arbitrator should maintain order by:

• Directing each side to speak one at a time and only to the arbitrator.
• If there is a stenographer, ensuring that all colloquies take place on the record.
• Taking a break, if necessary, to allow the tempers to cool.

Under the rules of the major arbitral institutions, the arbitrator is empowered to order sanctions against any party defying an order of the arbitrator (AAA Commercial Rule R-58, JAMS Rule 29, CPR Domestic Rule 16, FINRA Customer Rule 12212, and FINRA Industry Rule 13212). The FAA also permits an arbitrator to issue sanctions (see, for example, ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 88 (2d Cir. 2009)). Therefore, if the disruption persists, the arbitrator should warn the offending party of the possibility of a sanction, which may include:

• Assessing against the offending party:
  • arbitral forum fees;
  • arbitrator compensation; and
  • attorneys’ fees.
• Excluding evidence.
• Drawing an adverse inference.

The arbitrator should think twice before sanctioning a pro se party. A court reviewing is not likely to look favorably on an arbitral award that involved any kind of sanction against a pro se party.

Closing the Hearing

At the close of the hearing, the arbitrator should discuss with the parties when the record closes. In most cases involving a pro se party, the arbitrator should close the record at the conclusion of the merits hearing.

Parties, and especially their attorneys, often want the opportunity to submit post-hearing briefs. However, like pre-hearing briefs (see Discourage Pre-Hearing Briefing, above), post-hearing briefing in a case involving a pro se party is usually not advisable because:

• It may give an unfair advantage to the represented party.
• It is usually unnecessary because:
  • if the dispute turns primarily on a legal issue the pro se party’s briefing is not likely to shed light on the issue; and
  • if the dispute turns primarily on a factual issue the arbitrator does not need the parties to summarize the facts from the hearing, especially if there is a transcript.

The arbitrator also should discourage the parties from presenting oral summations of the evidence at the close of the hearings because this situation can also be intimidating for a pro se party. If the pro se party wants to summarize the case it just presented, however, the arbitrator should permit it but be prepared to curtail the summation if the pro se party strays from summarizing the evidence or starts to use the summation as an opportunity to continue testifying.