THE PRELIMINARY HEARING
The preliminary hearing (also known as an arbitration management conference) is an essential first step in assuring that the arbitration process proceeds smoothly. The following may be discussed at this session:
• The general nature of the case – Since the arbitrator should have no knowledge of the background facts, the attorneys should be prepared to discuss the general nature of the allegations in a brief, non-adversarial manner. (For example, This is an employment case where the claimant alleges that she was sexually harassed; This is a fee dispute where the respondent failed to pay for legal services.)
• The operative pleadings – The complaint and answer should be given to the arbitrator as soon as possible so that he or she is familiar with the issues and can resolve discovery disputes and motions for summary adjudication/summary judgment, if and when they occur.
• The arbitration agreement – The terms of the agreement should be given to the arbitrator so that he or she knows what limitations, if any, exist regarding discovery and the arbitrator’s powers to decide the issues at the hearing.
• Discovery – The parties should have a good idea about their discovery needs because of the nature of the case and any prior, informal discussions. The arbitrator will want to know if they agree to limit discovery as set forth in the provider’s guidelines (see, for example, paragraph 17 of ADR Services’ Arbitration Rules [“rules”] which states that “Each party may take one deposition of an opposing party or of one individual under the control of the opposing party”) or if they need expanded discovery. Discovery timing can be governed by the provider’s guidelines or a stipulation that the C.C.P. standards shall control.
• Calendaring and service of motions – The parties should discuss whether any motions (such as summary adjudication/summary judgment) may be filed, whether the timing of such motions shall be governed by the C.C.P., when those motions shall be heard and whether such motions may be served by fax or e-mail.
• Calendaring the hearing –The parties should take into account the time needed to complete abbreviated discovery, to hear any motions and to try the matter. As to the latter, sufficient and continuous hearing dates should be scheduled so that the evidence is not heard in a stop and start manner. A backdrop to these considerations is that arbitration is intended to proceed at a quicker pace than trial court proceedings. As to Kaiser malpractice arbitrations, the parties should be aware that such matters must be resolved in less than eighteen months from the time of the arbitration demand.
• Pre-arbitration status conference – This conference, which can be telephonic, should be scheduled two to four weeks before the arbitration hearing to discuss any last-minute issues, such as motions in limine.
• Bifurcation – The parties should be prepared to discuss the need to bifurcate any issues, such as liability from damages or attorney’s fees and costs.
• Witness lists – Although the provider’s rules may indicate that the exchange of witnesses to be called should be conducted at a particular time (see, for example, ADR Services rules, par. 17, which states that a party may request, within fifteen days of the arbitration demand, disclosure of the opposing party’s witnesses [including experts]), the parties may wish to stipulate to a more relaxed production. The witness lists should also be given to the arbitrator.
• Evidence book(s) – Like the witness lists, the applicable rules may call for the early exchange of non-privileged writings to be used at the arbitration. (See ADR Services rules, par. 17.) Again, the parties may want to handle this issue more casually. Regardless, the exhibits should be made available to the arbitrator no later than two weeks before the start of the proceeding. Preferably, a joint evidence book should be used; if that is not possible, each party should be assigned separate numbers.
• Opening briefs – The date for serving these briefs should be established. The arbitrator may recommend that opening statements at the arbitration can be abbreviated, if not eliminated, where comprehensive briefs are to be submitted.
• Mediation date – If the parties want to mediate the matter before the arbitration, the arbitrator should advise that the better practice is that he/she not conduct this hearing. If the parties persist, the arbitrator may be the mediator where both sides have consented in writing to this conflict. (See Rule of Court 3.857, subdivision (g) and ADR Services, rule 19.) Note that Kaiser arbitration rules mandate that a settlement meeting must be calendared within six months of the preliminary hearing.
• Court reporter – Any party that wants a stenographic record of the arbitration is responsible for hiring and paying for that reporter and then notifying the other party of that arrangement at least five days before the hearing. (ADR Services, rule 21.)
Copyright Michael D. Marcus, September 2007