Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award? That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law.
The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of Law conducted recently. He obtained responses from 134 highly experienced arbitrators –most of them had arbitrated more than 100 disputes in their career — to a range of questions. And the results dispel some myths about arbitration.
Here’s another myth-buster: less than 1% of these arbitrators refuse to rule on motions for summary judgment. Instead, about 70% of these arbitrators say they “readily” rule on dispositive motions.
A less surprising statistic is this one: 91% of responding arbitrators “usually” or “always” work with counsel to limit discovery, and 94% “usually” or “always” encourage the parties to limit the scope of discovery. Here’s another non-shocker: 75% of these arbitrators generally “receive virtually all non-privileged evidence and discourage traditional objections (hearsay, foundation, etc.).” Experienced arbitrators are proactive case managers in other ways as well, with the great majority requiring parties to submit a core collection of joint exhibits for the hearing, limiting duplicative testimony, and telling counsel when a point has been understood and “they can move on.” (That is always an awkward moment.)
So, if there is a lull in conversation this Thanksgiving, you can shake things up by asking: “Did you know that most people choose to serve as arbitrators because they see it as a form of public service and a logical extension of their professional practice?” I am sure that will receive just as welcome a reception as my recent query at a dinner party: “Tell me, what is your preferred method of judicial selection?” [My husband won’t let me live that one down.]
Other interesting arbitration news and notes.
The DC Circuit ruled last week that FOIA does not require the Securities and Exchange Commission to turn over documents it collected while examining FINRA’s arbitration program. Public Investors Arbitration Bar Assoc. v. SEC, __ F.3d __, 2014 WL 5904725 (D.C. Cir. Nov. 14, 2014). An organization of lawyers who represent individual investors in FINRA disputes had requested those records.
The NLRB won’t go down without a fight on its controversial D.R. Horton ruling, which held that federal labor laws do not allow employers to force employees to give up class actions in arbitration. In a late October opinion it wrote “we have carefully considered, and fully addressed, the views of both the Federal appellate courts that have rejected D.R. Horton and the views of our dissenting colleagues. We have no illusions that our decision today will be the last word on the subject, but we believe that D.R. Horton was correctly decided, and we adhere to it.”
Finally, as of this month, the College of Commercial Arbitrators has its first female President, Deborah Rothman. Cheers!