One of the most important steps in ensuring an effective arbitration is to be fully prepared for the preliminary hearing that will be held by the arbitrators soon after they have been appointed. At this hearing the arbitrators will discuss all aspects of the process and set a schedule both for prehearing preparation and the hearing. After the hearing the arbitrators will issue a scheduling order setting out the parameters for prehearing preparation (pleadings, information exchange, motion practice) and the hearing with requisite deadlines. As discussed above, once deadlines are established, most arbitrators will be reluctant to amend them.
To be prepared you need to fully understand the legal and factual issues raised by the complaint and response and any counterclaim. The best way to get control of this process is to obtain a copy of the rules of the designated arbitrable institution, which contains a preliminary hearing checklist (see AAA Commercial Rules R-22 and P-2, CPR Administered Arbitration Rules, Rule 9.3). These are available to the participants or the public on the institutions’ websites. Even if the arbitration is self-administered, these checklists present an excellent review of the issues that should be addressed at the preliminary hearing. Also, many arbitrators will have prepared their own checklist to be used at the hearing. If they do not distribute one to you, ask them if they have a list of the subjects that they want to discuss.
