ACR-GNY Tip Of The Month

This month's guest blogger is Andrew J. Gerber and he offers us the ACR-GNY Tip of the Month.

Tip of the Month for December 2010: Arbitration Parties Are People Too -- Help Them Feel That Way.

When you preside in an arbitration hearing you’ll be confronting two different kinds of people: The disputing parties and the counsel who represent them. They’re different from each other because the counsel will always understand what is going on in the room, and why things are being done the way they are. But that will often not be true of the parties.

You might expect that the counsel will have briefed their clients on what to expect. That assumption could be natural but could also be overoptimistic. Or you might focus your attention entirely on the counsel because they take the lead in the action, sitting closer to you and doing all the talking. That kind of focus would be natural too, but it could diminish your awareness of the parties, subtly and subconsciously, and could lessen your sensitivity to their need to understand the process going on around them. It could also make them feel ignored or abandoned and leave them, ultimately, with doubts and misgivings about the way their interests are being disposed of.

That result would represent a failure in the process. There are things an arbitrator can do to help avoid it. Here are a few:

* Before You Start: Explain That You’re Not in Court, And What That Means. Parties may come to the hearing with misguided procedural expectations, based on prior experiences with court proceedings or from watching too much “Law & Order”. You can help them anticipate what is actually going to happen by explaining that an arbitration differs from a case in court: that the procedure is much less formal; that the rules of evidence are relaxed; and that the emphasis here is on making sure that each side is given full opportunity to tell its story. This kind of briefing not only helps the parties understand the proceeding better; it also shows them that they are being recognized individually and taken into account --genuinely, not just technically.

* Get Really Specific About the Ex Parte Rule. Parties who don’t understand the rule can be offended and upset if you seem to snub them in ex parte encounters, in the hearing room or elsewhere. You can avoid this risk by explaining the rule and its importance before the case begins. Alert them specifically that you won’t remain in the room with any party or counsel without someone present from the other side (or all the other sides), and that you won’t speak with them -- even about the weather -- if you cross paths with them separately outside the room. Explain that your avoidance of conversation won’t be out of rudeness, but will actually be necessary to preclude violations of this bedrock principle of fair procedure.

* During the Hearing: Help the Parties Understand What You’re Doing. While the hearing is in progress, consider whether a lay party might not understand what is happening, and consider the possibility that a brief explanation might defuse potential suspicion or alienation. For example: The lawyers may understand your ruling fully when you respond to an objection with a terse “sustained” or “overruled”, but the parties may not. An occasional detour to explain your reason for a ruling could counteract a perception by the affected party that you are treating her/his case and counsel dismissively or unfairly.

Another example: If damage issues are addressed before liability has been determined, a lay party may interpret that as a signal that you have decided to find liability. You can allay that concern by assuring the parties that you have not, but that damages are being addressed provisionally at this point to avoid a need for a separate hearing on them.

These techniques are just examples. Others will suggest themselves if you think about the parties (remembering that they are the most important people in the room) and put yourself into their shoes. And, of course, the approach suggested here requires discretion: You may find yourself with parties whose sophistication makes it unnecessary, and it could be overdone in any case. But a judicious measure of it in an appropriate case should not add significantly to the length of the hearing, and will more than compensate for its limited use of time by its contribution to the parties’ satisfaction with the arbitration process they are paying for.

Andrew J. Gerber graduated from the University of Vermont and Yale Law School. He was the ACLU’s first legal intern, served in the U.S. Army JAG Corps, and worked as a lawyer at the American Society of Composers, Authors and Publishers (ASCAP). After private law practice in New York City he became an attorney for CBS, working mostly with its Records Group (including the Columbia, Epic and Masterworks labels) and its successor, Sony Music Entertainment. He then became the first General Counsel of Columbia House and served there until 2001. He is now an arbitrator and mediator, including service on the AAA Commercial Panel, the FINRA arbitrators panel, the New York County Part 137 arbitrators roster, the arbitration panel of the Better Business Bureaus, and the mediation rosters of the New York Supreme Court Commercial Division and the U.S. District Court for the Eastern District of New York. He also works as a consultant to lawyers on entertainment and copyright matters.

He has lectured for PLI, the New York City Bar Association, the Federal Bar Association, the Copyright Society of the USA, the New Music Seminar, and the law Schools of Cardozo, Columbia, Fordham, Hofstra, NYU, and Seton Hall. He has served as ARGNY’s Treasurer and a member of its Board since 2003. Contacts: andger@earthlink.net; 914-479-1330.

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