a comparison of selected domestic arbitration rules

AlternativesTO THE HIGH COST OF LITIGATION

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 11 DECEMBER 2008

AlternativesAlternatives to the High Cost of Litigation (Print ISSN 1549-4373, Online ISSN 1549-4381) is a newsletter published 11 times a year by the International Institute forConflict Prevention & Resolution and Wiley Periodicals, Inc., a Wiley Company, at Jossey-Bass. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc.

Editorial correspondence should be addressed to Alternatives, International Institute for Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York,NY 10022; E-mail: [email protected].

Copyright © 2008 International Institute for Conflict Prevention & Resolution. All rights reserved. Reproduction or translation of any part of this work beyond that per-mitted by Sections 7 or 8 of the 1976 United States Copyright Act without permission of the copyright owner is unlawful. Request for permission or further informationshould be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030-5774; tel: 201.748.6011, fax: 201.748.6008; orvisit www.wiley.com/go/permissions.

For reprint inquiries or to order reprints please call 201.748.8789 or E-mail [email protected].

The annual subscription price is $190.00 for individuals and $275.00 for institutions. International Institute for Conflict Prevention & Resolution members receive Alter-natives to the High Cost of Litigation as a benefit of membership. Members’ changes in address should be sent to Membership and Administration, International Institutefor Conflict Prevention & Resolution, 575 Lexington Avenue, 21st Floor, New York, NY 10022. Tel: 212.949.6490, fax: 212.949.8859; e-mail: [email protected]. To order,please contact Customer Service at the address below, tel: 888.378.2537, or fax: 888.481.2665; E-mail: [email protected]. POSTMASTER: Send address changes toAlternatives to the High Cost of Litigation, Jossey-Bass, 989 Market Street, 5th Floor, San Francisco, CA 94103-1741.

Visit the Jossey-Bass Web site at www.josseybass.com. Visit the International Institute for Conflict Prevention & Resolution Web site at www.cpradr.org.

TO THE HIGH COST OF LITIGATION

Publishers:Kathleen A. BryanInternational Institute for Conflict Prevention and Resolution

Susan E. Lewis John Wiley & Sons, Inc.

Editor: Russ BleemerJossey-Bass Editor: David FamianoProduction Editor: Ross Horowitz

VOL. 26 NO. 11 DECEMBER 2008 ALTERNATIVES 199

A Comparison of Selected Domestic Arbitration RulesFrom time to time, Alternatives has pro-vided side-by-side comparisons of alter-native dispute resolution rules as pro-mulgated by different providers. Most recently, in May, Stamford, Conn., at-torney Steven A. Certilman analyzed the rules of five top ADR organizations covering conduct in international arbi-tration cases. See “A Comparison of Se-lected International Arbitration Rules,” 26 Alternatives 91 (May 2008).

This month, at the request of readers, and also as a result of information requests fielded by callers to the CPR Institute, which publishes this newsletter, Alterna-

tives presents a comparison of the top sets of domestic U.S. arbitration rules.

The rules of the CPR Institute and the American Arbitration Association, both based in New York, and JAMS, headquar-tered in Irvine, Calif., were revised last year, which rendered previous Alternatives comparisons—still available in older ar-ticles on Westlaw and Lexis—outdated.

Eleven rules categories are broken down into their components, and analyzed for each of the providers.

The rules are current as the first week of November—but Alternatives advises using this material only as the comparison guide

it is intended to be. Before making choices between the provider offerings, or analyzing the exact process needed under a particular set, please check the providers’ Web sites for the most current precise wording of the rule in question. The Internet addresses are provided at the top of the chart.

CPR Summer 2008 interns Jillian Lee Hunt and Timothy Klimpl produced this chart. Hunt is a second-year student, and Klimpl a third year student, at New York Law School in New York City. Q

DOI 10.1002/alt.20252

(For bulk reprints of this article, please call (201) 748-8789.)

Published online in Wiley InterScience (www.interscience.wiley.com).Alternatives DOI: 10.1002/alt

TOPIC CPR: INTERNATIONAL INSTITUTE FOR CONFLICT PREvENTION AND RESOLUTION NON-ADMINISTERED ARBITRATION RULES: EFFECTIvE NOv. 1, 2007

AMERICAN ARBITRATION ASSOCIATION COMMERCIAL RULES EFFECTIvE SEPT. 1, 2007

JAMS COMPREHENSIvE ARBITRATION RULES & PROCEDURES EFFECTIvE MARCH 26, 2007

GENERAL www.cpradr.org www.adr.org www.jamsadr.comGeneral (taken from materials produced by provider institu-tion)

Promulgated in 1992, revised in 2000, 2005, and 2007, rules provide for non-ad-ministered (ad hoc) arbitration of disputes; provide procedures to facilitate the conduct of the arbitration process fairly, expedi-tiously, and economically. The rules are in-tended, in particular, for the complex case.

Current version of rules is from 2007. Rules provide for administered arbitra-tion of domestic commercial disputes.

Current version of rules is from 2007.

Application Where the parties have agreed in writing to apply these rules, the rules are deemed a part of their arbitration agreement. Parties may agree to modify the rules in writing or on the record during the course of the arbitral proceeding. (R 1.1.)

Where the parties have provided for arbitration by the American Arbitration Association under its Commercial Ar-bitration Rules or for arbitration by the AAA of a domestic commercial dispute without specifying particular rules, the rules are deemed a part of their arbitra-tion agreement. Parties may agree to written modifications but after appoint-ment of the arbitrator only with the latter’s consent. (R 1.)

Where the parties have provided for arbi-tration by JAMS under its Comprehensive Rules or for arbitration by JAMS without specifying any particular JAMS rules and the disputes or claims exceed $250,000, not including interest or attorneys’ fees, the rules are deemed a part of their arbi-tration agreement. (R 1(a), 1(b).) Parties may agree on any procedures not specified in the rules that are consistent with appli-cable law and JAMS policies by promptly notifying JAMS of any such party-agreed procedures and confirming such proce-dures in writing. (R 2.)

Which version of Rules Ap-plies?

Rules in effect at time of commence-ment. (R 1.1.)

Rules in effect at the time the administra-tive requirements are met for a demand for arbitration or submission agreement received by the AAA. (R 1.)

Rules in effect at time of commence-ment. (R 3.)

JURISDICTIONObjections to Jurisdiction or Existence/validity of Arbitra-tion Clause

Tribunal has power to hear and de-termine challenges to its jurisdiction, including objections with respect to exis-tence, scope or validity of the arbitration agreement. (R 8.1.)

Arbitrator may rule on his or her own ju-risdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. (R 7.)

Arbitrator has power to hear and de-termine challenges to its jurisdiction, including disputes over the existence, validity, interpretation or scope of the arbitration agreement. (R 11(c).)

Deadline for Challenges to Jurisdiction of Tribunal

Challenges must be made no later than the Notice of Defense or, if relating to a counterclaim, the Reply to Counterclaim or in responses to amended claims or counterclaims. (R 8.3.)

Jurisdictional challenges must be made by the filing of the answering statement. (R 7(c).)

Unless the parties agree otherwise, chal-lenges must be filed with JAMS within 14 calendar days of the date of commence-ment of the arbitration. (R 9(c).) If relat-ing to a counterclaim, the reply must be served on the other parties and filed with JAMS 14 calendar days of having received the notice of the counterclaim. (R 9(d).)

Arbitration Clause Deemed a Separate Agreement

Yes. (R 8.2.) Yes. (R 7(b).) No express provision.

COMMENCEMENTMethod Commenced by Notice of Arbitration to

respondent and deemed commenced on the date notice is received by the respon-dent. (R 3.2)

Commenced by written demand to respondent when initiated under an arbitration provision in a contract, and the filing of two copies at any office of the AAA of the demand or submission to arbitrate. (R 4, R 5.)

Commenced when JAMS confirms in a Commencement Letter either the submis-sion to JAMS of a post-dispute arbitration agreement fully executed by all parties; the submission to JAMS of a pre-dispute written contractual provision; the oral agreement of all parties; or a court order compelling arbitration at JAMS. The ar-bitration commencement date is the date on the Commencement Letter. (R 5)

Statement of Claim – Must it be Attached to a Notice of Arbitration?

A statement of the general nature of the claim is required and the relief or remedy sought. (R 3.3(d) and (e).)

A statement of the nature of the dispute, amount involved, if any, and the remedy sought. (R 4, R 5.)

A short statement of the factual basis is required. (R 9(b).)

Statement of Defense Notice of Defense required within 20 days of respondent’s receipt of Notice of Arbitration. (R 3.4.)

Required within 15 days after confirma-tion of notice of filing of the arbitration demand is sent by the AAA. (R 4(b).)

Response should be served on the other par-ties and filed with JAMS within 14 calendar days of the service of the notice of claim.

Deposits for Costs Required on Commencement

A deposit will be generally requested by the tribunal once constituted. Additional deposits may be required. Case may be suspended or terminated in the event deposit of costs not made as required. (R 17.) CPR charges a flat fee (see www.cpradr.org) for neutral selection.

The AAA may require filing fees and a deposit in advance, of any expenses as it deems necessary. (R 49 and 52.)

A deposit is required prior to hearing. Case may be suspended or terminated in the event deposit of fees not made as required. (R 31.)

ARBITRATORS/TRIBUNAL MATTERSNumber of Arbitrators Three arbitrators, unless parties have agreed

in writing to a single arbitrator. Unless oth-erwise agreed, any arbitrator not appointed by a party shall be a member of the CPR Panels of Distinguished Neutrals. (R 5.1.)

Absent the parties’ agreement, one arbi-trator unless the AAA determines three to be appropriate. (R 15.)

One neutral arbitrator unless all parties agree otherwise. (R 7(a).)

Selection Selection is non-administered unless parties cannot agree. If single arbitrator or three neutral arbitrators, selection is by agreement of the parties or, if none, by CPR. (R 5.3, 6.1.) If there are to be two party-appointed arbitrators, the two party arbitrators ap-point the third, who shall be the chair. CPR resolves an impasse between the party arbitrators if necessary as in the case of a single arbitrator. (R 5.2.) Except where a party fails to participate in the procedure, or if a party did not appoint “party-appointed” arbitrator, CPR shall convene the parties in person or by telephone to attempt to select the arbitrator(s) by agreement of the parties. If the procedure provided for does not result in the selection of the required number of arbitrators, CPR shall submit candidate list to the parties for ranking by the parties prior to making the appointment. (R 6.4, 6.5.) With more than one claimant or respondent (R 5.5), CPR shall appoint all of the arbitra-tors. (R 6.4.)

Agreement of parties of arbitrator, or if parties fail to agree, AAA shall send an identical list to each party and the parties are encouraged to agree on an arbitrator. (R 11(b).) If the parties fail to agree on any persons named, AAA shall have the power to appoint from among other members of the National Roster. (R 11(b).)

Deference given to self selection. If Arbitrator not previously selected by agreement of the parties, JAMS may attempt to facilitate agreement regard-ing selection. (R 15(a).) If parties do not agree on an Arbitrator, JAMS shall submit candidate list to the Parties for ranking. If this process does not yield an arbitrator or a complete panel, JAMS shall designate sole arbitrator or as many as are necessary to complete the panel. (R 15(d).)

Standard for Disclosure by Arbitrators

Any circumstances that might give rise to justifiable doubt regarding the arbitrator’s independence or impartiality. (R 7.3.)

“Any circumstance likely to give rise to justifiable doubt as to the arbitrator’s im-partiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.” (R 16(a).)

Standard is not specified. Disclosures regarding the arbitrator shall be made as required by law or within 10 calendar days from the date of appointment. Ar-bitrator’s obligation to make all required disclosures continues throughout the arbitration process. (R 15(h).)

Challenge of Appointment Standard is circumstances exist or arise that give rise to justifiable doubt regard-ing that arbitrator’s independence or impartiality. A party may only challenge an arbitrator it appointed for reasons of which it only becomes aware after the ap-pointment has been made. (R 7.5.)

Any arbitrator is subject to disqualifica-tion for: partiality or lack of indepen-dence; inability or refusal to perform his or her duties with diligence in good faith; and any grounds for disqualification pro-vided by applicable law. (R 17(a).)

At any time, a party may challenge the continued service of an arbitrator for cause. The challenge must be based upon information that was not available to the parties at the time the arbitrator was selected. (R 15(i).)

Removal for Cause In addition to challenge procedure, stan-dard for removal is failure to act, or de jure or de facto prevented from perform-ing the arbitrator functions. If the parties do not agree on whether the arbitrator has failed to act or is prevented from per-forming the arbitrator functions, either party may request CPR to make that determination forthwith. (R 7.10.)

Upon objection of a party to the con-tinued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disquali-fied. The decision of the AAA shall be conclusive. (R 17(b).)

No specific standard for removal. Chal-lenge for cause to the continued service of the arbitrator must be made promptly, in writing, to the arbitrator or JAMS. (R 27.) JAMS will make the final determina-tion. (R 15(g).)

VOL. 26 NO. 11 DECEMBER 2008200 ALTERNATIVES




Replacement Arbitrators Replacement arbitrators shall be selected pursuant to the procedure by which the ar-bitrator being replaced was selected. (R 7.9.) Re-hearing is in the tribunal’s discretion except where sole or presiding arbitrator is replaced, in which case the successor decides whether to conduct re-hearings. (R 7.11.)

Arbitrators may continue hearing if a vacancy on a neutral panel opens after commencement of the hearing, unless the parties agree otherwise. vacancies are filled according to the rules of appoint-ment. (R 19.)

No express provision.

Place of the Arbitration Determined by tribunal if parties have not agreed. The award is deemed made at such place. (R 9.5.)

Determined by AAA if parties have not agreed. AAA decision is final and bind-ing. (R 10.)

Determined by arbitrator after consulting with the parties. (R 19(a).)

Substantive Law Determined by tribunal if not designated by the parties. (R 10.1.)

No express provision. Determined by arbitrator if not desig-nated by the parties. (R 24(c).)

INTERIM MEASURES OF PROTECTION BY TRIBUNALType Tribunal permitted to take such measures

as deemed necessary, including measures for the preservation of assets, the conser-vation of goods or the sale of perishable goods, at the request of a party. Tribunal may condition interim measures on giv-ing of security. (R 13.1.)

Arbitrator may take interim measures he or she deems necessary, including injunc-tive relief and measures for the protection or conservation of property and dispo-sition of perishable goods. (R 34(a).) Measures may include an interim award. Arbitrator may require security for the costs of such measures. (R 34(b).)

Arbitrator permitted to take such mea-sures as deemed necessary, including injunctive relief and measures for the protection or conservation of property and disposition of disposable goods. (R 24(e).)

Express Recognition of Court Proceedings as Alternative Route to Interim Measures of Protection

Yes. (R 13.2.) Yes. (R 34(c).) Yes. (R 24(e).)

INTERIM MEASURES OF PROTECTION – BEFORE TRIBUNAL IS FORMEDAvailable Procedure Interim measures via application to CPR

and appointment of a special, pre-tribu-nal arbitrator. (R 14.3.)

Where parties by special agreement or in their arbitration clause have adopted the AAA rules for emergency measures of protection. (Optional Rules for Emer-gency Measures of Protection.)

None.

PRE-HEARING CONFERENCE Requirement and Timing Required, generally to be held promptly

after the constitution of the Tribunal. (R 9.3.)

Optional at the request of any party or upon the AAA’s own initiative; may be conducted in person or by telephone. (R 9.)

Optional at the request of any party or at the arbitrator’s direction; may be conducted in person or by telephone and may be resumed from time to time as warranted. (R 16.)

DISCOvERYGeneral Standard for Produc-tion of Documents

Tribunal may order “such discovery as it shall determine is appropriate in the circumstances, taking into account the needs of the parties and the desirability of making discovery expeditious and cost-ef-fective.” (R 11.)

At the request of any party or at the discretion of the arbitrator, the arbitrator may direct the production of documents and other information. The direction should be consistent with the expedited nature of arbitration. (R 21.)

The parties shall cooperate in good faith and shall complete an initial exchange of all relevant, non-privileged documents; arbitrator may modify obligations at Pre-liminary Conference. (R 17(a).)

Orders of Protection or Con-fidentiality

Tribunal authorized to issue orders to protect proprietary information, trade secrets, or other sensitive information. (R 11.)

No specific provision. Arbitrator authorized to issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensi-tive information. (R 26(b).)

Witness Disclosure Unless otherwise determined by the tribunal or agreed by the parties, the pre-hearing memorandum shall include the name, capacity and subject of testi-mony of any witnesses to be called. (R 12.1(e).)

Arbitrator may direct the identification of any witnesses to be called at the request of any party or at the discretion of the arbitrator. (R 21.)

The parties shall complete an initial exchange of names of individuals whom they may call as witnesses at the arbitra-tion hearing within 21 calendar days after all pleadings or notice of claims have been received. (R 17(a).)

Remedies for Non-Compli-ance with Rules or Order of Tribunal

If deemed material by tribunal, after pas-sage of reasonable period for compliance, a just remedy may be imposed, including an award on default. Hearing must be held before issuance of award to establish a prima facie case. (R 16.)

No specific provision. Arbitrator may order appropriate sanctions for non-compliance. Sanctions may include assessment of costs, exclusion of certain evidence, or in extreme cases determining an issue or issues submitted to arbitration ad-versely to the non-complying party. (R 29.)

CONDUCT OF HEARINGSGeneral Discretion and Ob-ligation in Conducting the Proceedings

“Subject to these Rules, the Tribunal may conduct the arbitration in such manner as it shall deem appropriate.” (R 9.1.) The tribunal is obligated to manage the proceeding firmly in order to com-plete proceedings as economically and expeditiously as possible. (R 9.2.) “The Tribunal shall determine the manner in which the parties shall present their cases.” (R 12.1.)

“The arbitrator, exercising [his or her] discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentation on issues the decision of which could dispose all or part of the case.” (R 30(b).) “Any arbitra-tor shall be impartial and independent and shall perform his or her duties with dili-gence and in good faith.” (R 17.) “Before proceeding with the first hearing, each arbitrator may take an oath of office and, if required by law, shall do so.” (R 25.)

“The Arbitrator will ordinarily conduct the Arbitration Hearing in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is deter-mined reasonable and appropriate to do so.” (R 22(a).)



Pre-Hearing Memoranda Yes, unless the parties agree or the Tri-bunal determines otherwise. The memo-randum shall include a statement of facts, a statement of each claim being asserted, a statement of the applicable law and authorities upon which the party relies, a statement of the relief requested, and a statement of the nature and manner of presentation of the evidence, including witness information. (R 12.1.)

No specific provision. Yes, subject to any schedule adopted in the Preliminary Conference, at least 14 calendar days before the Arbitration Hearing. (R 20(a).) Rebuttal statements or other pre-hearing written submissions may be permitted or required at the Arbitrator’s discretion. (R 20(b).)

Hearings in Person If either party requests, otherwise at the tribunal’s discretion. (R 12.2.)

The parties may agree to waive oral hear-ings in any case. (R 30(c).)

Either by the agreement of the parties or at the request of one party, the arbitrator may permit any party to file a motion for summary disposition. (R 18.) The arbitra-tor may set the hearing without consulting with the party that failed to participate in the arbitration process. (R 19.) The arbitrator may proceed with the hearing in the absence of a party that fails to attend. (R 22(j).) The parties may agree to waive oral hearing and submit the dispute to the arbitrator for an award. (R 23.)

Location of Hearings Meetings and hearings may be held any-where the tribunal deems appropriate. (R 9.5.)

The arbitrator determines the date, time and place of each hearing. (R 22.)

After consulting with the parties, the arbitrator determines date, time and loca-tion of the hearing. (R 19(a).)

Formal Rules of Evidence Not required to be applied, provided, however, that the tribunal shall apply the lawyer-client privilege and the work product immunity. (R 12.2.)

Not required to be applied, provided however, that the arbitrator take into account principles of legal privilege. (R 31.)

Strict conformity not required, “except that the Arbitrator shall apply applicable law relating to privileges and work prod-uct.” (R 22(d).) Settlement offers and mediator recommendations ordinarily not admissible. (R 22(f).)

Tribunal Requests for Evidence

Permitted. (R 12.3.) Permitted. (R 31.) No express provision.

Tribunal Appointment of Neutral Experts

Permitted. (R 12.3.) No specific provision. No express provision.

Tribunal Inspection of Goods or Property

No express provision. An arbitrator may make an inspection or investigation in connection with the arbitration. (R 33.)

No express provision.

Written Statements of Witnesses

Discretion of the tribunal. (R 12.2.) Permitted. (R 32.) Discretion of the arbitrator. (R 22.)

Respect of Legal Privilege The tribunal shall apply the lawyer-client privilege and the work product immunity. The tribunal determines the applicability of any privilege or immunity. (R 12.2.)

To be taken into account by the arbitra-tor. (R 31(c).)

The arbitrator shall apply applicable law relating to privileges and work product. Arbitrator determines applicability. (R 22(d).)

Usages of Trade Considered Usages of trade applicable to the subject contract shall be considered by the tribu-nal. (R 10.2.)

Silent. Silent.

Are Hearings Open or Closed?

Tribunal may exclude witnesses during testimony of other witnesses. (R 12.4.) Except as otherwise required by law or judicial proceeding, the tribunal shall treat proceedings as confidential. (R. 18.)

The arbitrator and the AAA must main-tain the privacy of the hearings, absent law to the contrary. Any person with a direct interest in the arbitration may at-tend hearings. (R-23.)

JAMS and the arbitrator shall maintain the hearing’s confidential nature. Any person having a direct interest in the arbitration may attend the hearing, subject to the arbi-trator’s discretion or the parties’ agreement. Arbitrator may exclude any non-party from any part of a hearing. (R 26(c).)

Closure of Hearings Silent. Arbitrator must specifically inquire of all parties whether they have any further evidence or witnesses. When the parties do not, or if the arbitrator is satisfied that the record is complete, the arbitrator shall declare the hearing closed. (R 35.)

Hearings may be declared closed when the arbitrator determines that all relevant ma-terial evidence and arguments have been presented. (R 22(h).) The arbitrator may, upon application of a party or own its own motion, reopen the hearings at any time before the award is made. (R 22(i).)

AWARDTypes of Award Final, interim, interlocutory and partial.

To facilitate enforcement of non-final awards, tribunal may state that it views the award as final for purposes of any related judicial proceedings. (R 15.1.) If requested by all parties and accepted by the tribunal, the tribunal may record a settlement in the form of an award made by consent of the parties. (R 19.4).)

Final, interim, interlocutory and partial, and the arbitrator may make other deci-sions, including orders and awards. In an interim, interlocutory or partial award, the arbitrator may assess and apportion fees, expenses and compensation related to each award as the arbitrator deems ap-propriate. (R 43.) On the request of set-tling parties, the arbitrator may set forth the terms of the settlement in a “consent award.” (R 44.)

Final Award or Partial Final Award, and the arbitrator may make other decisions, including interim or partial rulings, or-ders and awards. (R 24(d).)

Form of Award Reasoned unless the parties agree other-wise. (R 15.2.)

The arbitrator need not render a reasoned award except upon written request prior to the arbitrator’s appointment. (R 42.)

Reasoned unless the parties agree other-wise. (R 24(h).)



Award Required to be Made At the Place of Arbitration

Award deemed made at the seat. (R 15.2.)

No express provision. (See R 10.) No express provision. (See R 19.)

Time Limit for Issuance Generally, one month after submission of the dispute to the tribunal for decision. (R 15.7.)

“Promptly,” no later than 30 days from date of closing of hearing. (R 41.)

Within 30 calendar days after the date of the close of the hearing. (R 24(a).)

Formalities Award must be dated and signed by the arbitrator or a majority of arbitra-tors when there are three arbitrators. (R 15.2.)

Award must be in writing and signed by a majority of the arbitrators. It must be executed in the manner required by law. (R 42.)

Award must be in writing and signed by the arbitrator or a majority of arbitrators where there is a panel. (R 24(b), 24(h).) Arbitrator shall provide the Final Award or Partial Final Award to JAMS for issuance. (R 24(a).)

Pre-Award and Post-Award Interest

In the discretion of the tribunal, taking into consideration the contract and ap-plicable law. (R 10.4.)

The arbitrator may award interest at such rate and from such date as the arbitrator deems appropriate. (R 43.)

The arbitrator may award “interest (at such rate and from such date as the Arbi-trator may deem appropriate) if provided by the Parties’ agreement or allowed by applicable law.” (R 24(g).)

Types of Remedies Expressly Permitted

Any remedy or relief, including specific performance, within the scope of the par-ties’ agreement and permissible under the applicable substantive law. (R 10.3.)

Any remedy or relief, including specific performance, that the arbitrator deems just and equitable and within the scope of the parties’ agreement. (R 43.)

Any remedy or relief, including specific performance, that is just and equitable and within the scope of the parties’ agree-ment. (R 24(c).)

Post-Award Requests Within 15 days after receipt of the award, a party may request clarification, correction or additional award as to claims not determined. (R 15.5.)

Within 20 days of receipt of award, a party may request a clerical, typographi-cal or computational correction of the award. “The arbitrator is not empowered to redetermine the merits of any claim already decided.” (R 46.)

Within seven calendar days after issuance of the award, a party may request that the arbitrator correct any computational, typographical, or other similar error in an award. (R 24 (j).)

Costs Fixed by tribunal at time of award. (R 17.2.) Allocation by tribunal subject to party agreement. (R 17.3.)

Fixed and allocated by tribunal at time of award. (R 43.)

Set forth in JAMS fee schedule in effect at the time of the arbitration’s commence-ment, unless parties agree on a different allocation of fees and expenses. (R 31(a).) The parties are jointly and severally liable for the payment of fees. (R 31(c).)

Items Included in Costs Tribunal fees; expenses; costs of tribunal and party experts; costs of legal representa-tion and assistance and experts incurred by a party to the extent the tribunal deems appropriate; administrative costs. (R 17.2.)

Administrative fees, witness expenses, and compensation for neutral arbitrator. Ar-bitrator may apportion such costs as the arbitrator deems appropriate. (R 43.)

JAMS arbitration fees and arbitrator compensation and expenses. (R 31(c).)

Award of Attorney’s Fees At the tribunal’s discretion, they may be included in costs. (R 17.2(d).) Subject to contrary party agreement. (R 17.3.)

The arbitrator may award attorney’s fees if the parties have so requested, or the award is authorized by law or their arbi-tration agreement. (R 43.)

At the arbitrator’s discretion if provided by the parties’ agreement or allowed by applicable law. (R 24(g).)

MISCELLANEOUS Confidentiality of Proceedings Yes, except in connection with judicial

proceedings ancillary to the arbitration or the parties agree otherwise. (R 18.)

The arbitrator and AAA shall maintain the privacy of the hearings unless the law provides otherwise. (R 23.)

Yes, except in connection with a judicial challenge to or enforcement of an award, unless otherwise required by law or judi-cial decision. (R 26(a).)

Mediation Amidst Arbitration Either party may propose settlement negotiations to the other party at any time. Tribunal may suggest that the parties explore settlement at times the tribunal deems appropriate. (R 19.1.) With consent of the parties, the tribunal at any stage of the proceeding may ar-range for mediation of the claims asserted in the arbitration. The mediator will be one acceptable to the parties. (R 19.2.) Tribunal members are barred from mediating and will not be informed of any settlement offers or other statements made during settlement negotiations or a mediation between the parties, unless both parties consent. (R 19.3.) On the parties’ request, the tribunal may record a settlement in the form of an award made by consent of the parties. (R 19.4).)

Permitted. Tribunal members barred from mediating. (R 8.)

Permitted; the parties may agree to sub-mit the case to JAMS for mediation. (R 28(a).) The JAMS mediator assigned to the case may not be the arbitrator unless the parties so agree in a written agree-ment to submit the matter to the arbitra-tor for settlement assistance. (R 28(b).)

Limit of Arbitrator Liability No administrator or arbitrator liability for any act or omission in connection with an arbitration. (R 20.)

No administrator or arbitrator liability for any act or omission in connection with an arbitration. (R 48(d).)

No administrator or arbitrator liability for any act or omission in connection with an arbitration, including disquali-fication of and recusal by the arbitrator. (R 30(c).)

Waiver of Compliance With Rule

Yes, if a party knows of the failure and fails to promptly object. (R 21.)

Yes, if a party knows of the failure and fails to object in writing. (R 37.)

Yes, if a party knows of the failure and fails to promptly object in writing. (R 27.)

Arbitrator Compensation Arbitrators compensated “on a reasonable basis determined at the time of appoint-ment.” Full disclosure of compensation to all parties required. (R 17.)

Neutral arbitrators compensated at a rate consistent with the arbitrator’s stated rate of compensation; made through the AAA, not directly between the parties and arbitrator. (R 51.)

Arbitrators set their own hourly, partial and full day rates, available at JAMS’ web site.



desirable processes and approaches for dispu-tants and practitioners to choose from.

This goal is to develop a pluralistic dispute resolution system that values the differences between processes, rather than seeks to promote a generally superior pro-cess. Thus professionals should seek to avoid orthodoxies that insist that particular processes are—or are not—appropriate.

Moreover, recognizing that the dispute resolution system is continually evolving, in part responding to changes in the larger world, dispute resolution leaders generally should encourage flexible and dynamic mod-els, and avoid static, brittle programs and systems. Leaders should maintain a careful balance between preserving important values of dispute resolution innovations and being flexible enough to satisfy needs of the legal system, practitioners, and the public.

It follows that the dispute resolution field should embrace strong roles for ne-gotiation and adjudication, facilitative and evaluative mediation, Collaborative Prac-tice and Cooperative Practice, and so on. (In Collaborative Practice, lawyers make binding commitments not to represent parties in contested litigation if they do not reach agreement; Cooperative Practice is similar but does not use the lawyer dis-qualification agreements that characterize Collaborative Practice.)

All dispute resolution processes have problems and limitations. The dispute resolution field should work to improve all the processes, including litigation. Al-though trial should normally be the last resort for resolving disputes, dispute reso-lution leaders and practitioners should ap-preciate the significant social value that the legal system contributes to U.S. society.

IMPROVING DECISION MAKING

Dispute resolution leaders should encour-age professionals to help their clients evalu-

ate process options that might reasonably satisfy the clients’ interests, giving greater priority to the clients’ interests than to the professionals’ philosophical preferences for or against different processes.

For example, although government agencies and corporations may appropriate-ly develop general preferences for mediation

or early neutral evaluation over arbitration and litigation, ADR policies should be flex-ible enough for parties to consider the latter when they might be appropriate.

Similarly, even if Collaborative lawyers believe that Collaborative Practice is gen-erally the best dispute resolution process, they should encourage potential clients to consider mediation, Cooperative Practice, or traditional litigation when those pro-cesses might be in the clients’ interest.

Leaders also should promote party de-

cision making to the extent appropri-ate. Specifically, within a given dispute resolution process, professionals should encourage party decision making about substantive and procedural issues as much as the parties want, and is appropriate in particular circumstances.

In some cases, clients do not want or are not capable of making certain deci-sions. But professionals should not simply assume that clients’ decision-making par-ticipation should be sharply limited.

Lawyers representing mediation clients, for example, should not generally assume that clients should not speak much. Attor-neys sometimes have legitimate concerns about potential risks from clients’ state-ments—but lawyers should balance the risks against the benefits of active client participation in appropriate situations.

When developing policies about dis-pute resolution processes, policymakers should use dispute system design, or DSD, procedures and principles as much as fea-sible given their circumstances. DSD in-volves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. In general, it entails assessing the needs of disputants and other stakeholders in the system, plan-ning to address those needs, providing necessary training and education for dis-putants and relevant dispute resolution professionals, implementing the system, evaluating it, and making periodic modifi-cations as needed.

When developing dispute resolution processes, designers should engage party representatives and other stakeholders as much as appropriate, and consider offering a variety of processes to satisfy various par-ties’ interests and preferences.

GOALS AND OPTIONS

In devising strategies to promote dispute resolution, leaders should consider a broad range of policy goals and options, and take advantage of the complementary benefits

ADR Policymaking (continued from page 197)

ADR Policies and Principles

The thesis: ADR has grown up. De-

velopment should be encouraged

with sophisticated deliberation.

The need: Dispute resolution serves

many societal purposes. Ad hoc

laws/regulation/design can still

be ad hoc, but it’s time for prin-

cipled policymaking to underlie

the actions affecting, installing

and supporting ADR.

What does that mean for prac-tice? It means that there’s a

lot going on. The maturing of

ADR is accompanied by big

new process developments. Op-

erating your case, or program,

or whatever, under ‘general as-

sumptions’ won’t cut it.

Arbitral Institution as Appointing Authority

If parties fail to agree, CPR appoints an arbitrator. (R 6.)

If parties fail to agree, AAA appoints an ar-bitrator from its National Roster. (R 11.)

If parties fail to agree, JAMS appoints an arbitrator. (R 15(d).)

Optional Arbitration Appeal The parties to any binding arbitration conducted in the United States may agree in writing that a party may file an appeal under the CPR Arbitration Appeal Pro-cedure from an arbitration award. (See www.cpradr.org/ClausesRules.)

Not applicable. Parties may agree in writing to JAMS Optional Arbitration Appeal Procedure at any time before the award becomes final.

(R. 34.) Q