In this round of Arbitration Tips-N-Tools (TNT), Professor Amy Schmitz asks some of the leading arbitration practitioners about filing arbitration claims, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
Round 1: What are your 3 top tips and/or tools with respect to filing an arbitration claim – especially in the digital era and complexities of Covid?
A) Theo Cheng -
- If possible, the tribunal should strive to send the parties or their counsel in advance at least a list of items on which they should meet-and-confer before the preliminary hearing and/or a tentative agenda. Doing so encourages the parties to work together – which will inure to all participants’ desire to have an efficient and cost-effective process – and help make the preliminary hearing go smoother because the parties will have at least considered the issues that the tribunal wishes to discuss with them in coming up with an appropriate scheduling order.
- One option a tribunal might consider is whether to affirmatively ask to hold the preliminary hearing via a video teleconferencing platform. The cost to do so is negligible, and holding a preliminary hearing where all participants can see and hear each other can help facilitate all participants working together more collaboratively to ensure that the proceeding will be efficient and cost-effective. Additionally, particularly in panel contexts, advocates will gain a better understanding and appreciation for how the tribunal interacts with each other.
- As part of the preliminary hearing, the tribunal should confirm with the parties that they (a) have no objections to the manner in which the tribunal was constituted; (b) are in agreement regarding the applicable procedural rules, procedural arbitration statute, and the law governing the claims and counterclaims; and (c) have properly named all the parties in this proceeding, and that they are currently aware of no other necessary parties that need to be joined. These introductory matters serve to ensure that all participants are in agreement as to the proper legal framework and the jurisdiction and authority of the tribunal, thereby either minimizing potential disputes and ambiguities later in the proceeding or fleshing out early in the proceeding any jurisdictional, arbitrability, or other foundational issues that need to be handled.
B) Daniel Urbas -
- Be clear about the issues raised and the remedies/conclusions sought in the arbitration.
- Consult the rules before filing in order to identify any particular formats or contents which must be in the notice (ie no consolidated notices for 2+ arbitrations, each requires its own notice).
- Include names of opposing counsel and key representatives so that arbitrators can conduct a more accurate conflicts search before the appointment and not during the arbitration.
C) George Friedman -
- Use headers: I don’t have ESP so it helps if you give me a hint on where you are going with your demand for arbitration.
- Be succinct: In the age of COVID, you don’t want to bore the arbitrators. Keep your paragraphs focused and brief.
- Use links: PDF with links is the way to go.
D) DeAndra Roaché -
- Parties to decide whether they want to have an evidentiary hearing or if the dispute lends itself to a “Documents- Only/Desk Arbitration” proceeding. If an evidentiary hearing is preferred, consider the format, i.e. in-person, telephonic, or videoconference.
- Consider an e-platform that is able to accommodate participants having lesser technical capabilities and know-how.
- Make time to set up dry-runs or practice sessions to ensure all participants are comfortable with the technology.
- The arbitrator(s) should possess a sufficient level of competence with whatever platform is proposed for use, so as to facilitate the proceedings without delay or disruption.
- Know the applicable arbitration rules that govern the proceeding
Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week......
Professor Amy Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit. Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.
Theo Cheng is an independent, full-time mediator and arbitrator, focusing on commercial, intellectual property, entertainment, technology, and employment disputes. He is a member of Resolute Systems’ Employment and Commercial panels of arbitrators and mediators, the Commercial and Large, Complex Case mediation and arbitration rosters of the American Arbitration Association, the Panel of Distinguished Neutrals of the CPR Institute, a FINRA arbitrator, and an arbitrator and mediator for several federal and state courts. He was also appointed to the American Intellectual Property Law Association’s List of Arbitrators and Mediators and the Silicon Valley Arbitration & Mediation Center’s List of the World’s Leading Technology Neutrals. He was inducted into the National Academy of Distinguished Neutrals in 2019. Theo has conducted over 500 arbitrations and mediations involving commercial and business disputes, breach of contract and negligence actions, trade secret theft, employment discrimination claims, wage-and-hour disputes, and intellectual property infringement contentions. The New Jersey State Bar Association Dispute Resolution Section presented Theo with the 2020 James B. Boskey ADR Practitioner of the Year Award, and The National Law Journal named him a 2017 ADR Champion.
Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.
Daniel focuses exclusively on serving as an arbitrator and mediator. As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.
A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.
Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.
He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia. At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.
George H. Friedman is the publisher and Editor-in-Chief of the Securities Arbitration Alert, a weekly online publication covering the latest developments in financial services arbitration and mediation. He is also the principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA dispute resolution forum in particular.
He is former Executive Vice President - Dispute Resolution of the Financial Industry Regulatory Authority (“FINRA”), a position he held through January 2013. He held the same title at NASD, which consolidated with NYSE Member Regulation to form FINRA in 2007. In this capacity, he was in overall charge of FINRA's dispute resolution program, carried out by the company's four regional offices and 72 hearing locations in the United States and abroad, 200 employees, and an annual budget of $50 million. He also served as Secretary of the Securities Industry Conference on Arbitration. He has been referred to by the U.S. Court of Appeals—4th Circuit as a “leading arbitration expert.” He is a member of the American Arbitration Association's National Roster of Neutrals.
Mr. Friedman is an Adjunct Professor of Law at Fordham Law School, where he has taught a course on alternative dispute resolution since 1996. He is Chairman of the Board of Directors of Arbitration Resolution Services, Inc. of Coral Springs, Florida. Arbitration Resolution Services is an innovative online arbitration services company facilitating an affordable alternative to costly courtroom litigation and in-person arbitration for resolving Business-to-Business, Business-to-Individual, and Vehicle and Property Damage disputes. ARS is unique in that its entire process can be completed online through the company website.
In his extensive dispute resolution career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He joined NASD in 1998 as Senior Vice President of NASD's Dispute Resolution Division, and was named Executive Vice President in 2002.
Mr. Friedman received a B.A. in Political Science from Queens College, and a Juris Doctor from Rutgers Law School - Newark, where he was an editor of the Law Review. He is admitted to the New York and New Jersey Bars and the United States Supreme Court, and is a Certified Regulatory and Compliance Professional. Mr. Friedman is a member of the Securities Experts Roundtable, and of several bar associations. He is past chair of the Committee on Alternative Dispute Resolution of the New York County Lawyers Association. He is a member of the Banking Advisory Committee of Bergen (NJ) Community College.
Mr. Friedman has lectured extensively on the subject of alternative dispute resolution, and has the distinction of being one of the architects of the American Arbitration Association’s Due Process Fairness Protocols for both employment arbitration and health care dispute resolution, and assisted in creating the Consumer Due Process Protocol. He has published often, with articles appearing in the Securities Arbitration Commentator, the ABA's Dispute Resolution Magazine, the New York Law Journal, the Rutgers Law Review, and the National Law Journal. He has blogs at Arbitration Resolution Services, Inc., the Securities Arbitration Commentator, and the World Future Society, among others.
DeAndra Roaché is a professional full-time neutral specializing in arbitration, mediation, and fact-finding of various disputes such as labor, employment, financial securities, construction, consumer, and other business disputes. She conducts arbitrations and mediations via in-person and virtual/online formats. Ms. Roaché works with companies, court systems, and individuals in various industries to assist with their conflict resolution and conflict management needs. Ms. Roaché is also the Founder and President of Cynergis Dispute Resolution Services, an ADR practice that specializes in conflict resolution and conflict management services. Ms. Roaché amassed significant and progressive experience in Financial Securities, Corporate, Contract, and Labor & Employment laws while working at major global law firms in Washington, DC. She has managed numerous high-profile cases; corporate formations, dissolutions, closings: Initial Public Offerings (IPOs); and major SEC regulatory registrations for Fortune 500 companies, industry leaders, sector innovators, and business entrepreneurs. Ms. Roaché served as financial securities subject matter expert/liaison to one major firm’s Asian-Pacific offices as well as the liaison to their domestic corporate and litigation legal teams regarding financial securities matters.