Copyright 2014 American Arbitration Association

Arbitration 101: An Introduction and Overview

For the Lawyer Who Is New To Arbitration

November 12, 2014 - 2:00 p.m. – 3:30 p.m. ET

PROGRAM SUMMARY

Speakers: Karen Kohler Fitzgerald and Larry D. Carlson The goal of his presentation is to provide the courtroom litigator/trial lawyer with information and tips that will allow the lawyer to handle an arbitration as skillfully as the lawyer handles a lawsuit in court. The presenters will walk the audience through the steps of arbitrator selection, the preliminary hearing, discovery, motion practice, the final evidentiary hearing, and post-award activities. There will be a brief discussion of the major changes in the AAA Commercial Arbitration Rules that became effective on October 1, 2013. Included are specific tips for gaining the trust and respect of your arbitrator, a checklist for the telephone call with the arbitrator to prepare for the final evidentiary hearing, and dos and don’ts for the preliminary hearing and final hearing.

AGENDA 2:00 p.m. Welcome and Introduction of Speakers (5 minutes) 2:05 p.m. Arbitration 101 (75 minutes)

• First Step – Filing the Demand • Arbitrator Selection • Preliminary Hearing • Discovery/Motions • Evidentiary Hearing • Award

3:20 p.m. Conclusion and Questions (10 minutes) 3:30 p.m. Evaluation (5 minutes) 3:35 p.m. Adjourn

[1]

LARRY D. CARLSON

Carlson Arbitration, L.L.C.

25 Highland Park Village, Suite 100-288

Dallas, TX 75205-2789

214-739-2664

Cell: 214-704-6829

lcarlson@carlsonarbitration.com

www.carlsonarbitration.com

CARLSON ARBITRATION, L.L.C., 2011 to present

In 2011, following a thirty-two year career as a trial lawyer at Baker Botts, L.L.P., Mr.

Carlson founded Carlson Arbitration, L.L.C., transitioning his practice from litigator to

arbitrator. Mr. Carlson is a member of the American Arbitration Association (“AAA”)

Roster of Neutrals for Large, Complex Cases. Since early 2011, he has served as an

arbitrator, either the single arbitrator or a member of a three person arbitration panel, in

thirty-three arbitration cases administered by the AAA or by the International Centre for

Dispute Resolution (the international division of the AAA). Mr. Carlson applies the

judgment and experience he gained in his thirty-two year career as a trial lawyer at Baker

Botts to ensure that parties to an arbitration proceeding achieve the benefits promised by

arbitration – accuracy, speed, efficiency, and finality.

BAKER BOTTS, L.L.P., 1978 through 2010

Mr. Carlson began his legal career at the Houston Office of Baker Botts in 1978. In

1985, he relocated to Dallas to help found the firm’s Dallas Office. Mr. Carlson became

a Senior Partner at the firm and co-chaired the firm’s Intellectual Property Litigation

Practice Group. At Baker Botts, Mr. Carlson first chair tried more than thirty cases to

conclusion (nearly all jury cases), represented parties in two substantial AAA arbitrations

that proceeded to award following multi-week hearings, and handled multiple evidentiary

temporary injunction hearings. Mr. Carlson argued appeals before the United States

Courts of Appeals for the Fifth and Federal Circuits, the Supreme Court of Texas, and

several Texas Courts of Appeals.

During his thirty-two year career as a trial lawyer at Baker Botts, Mr. Carlson handled

cases in federal courts around the country and in Texas state courts involving patent

infringement, misappropriation of trade secrets, construction disputes, oil and gas

disputes, employment disputes (wrongful termination, confidentiality covenant, non-

competition covenant), products liability and negligence death and personal injury

claims, computer hardware and software, telephony systems and methods (wireless and

wired), internet/web site systems and methods, medical systems and methods, antitrust

claims, securities claims, toxic torts, insurance disputes, and all manner of commercial

contract disputes.

At the end of 2010, Mr. Carlson left Baker Botts to found Carlson Arbitration, L.L.C.,

and he now limits his professional activity to service as an arbitrator in commercial,

[2]

employment, consumer, intellectual property, financial, and other arbitration cases

nationwide.

ARBITRATION COURSES, CONFERENCES, TRAINING

AAA Winning at Arbitration: More than 30 Specific Tips Advocates Can Use to Improve

Arbitration Outcomes, 2014; AAA Neutrals Roundtable Regarding the Updated

Commercial Rules, 2014; AAA Developments in Arbitration Law: Disclosure, Vacatur,

Sanctions, and Arbitrator Authority, 2013; AAA Managing a Successful Arbitration,

2013; AAA What We Have Here Is a Failure to Communicate, 2012; AAA Maximizing

Efficiency and Economy in Arbitration: Challenges at the Preliminary Hearing, 2012,

2011; AAA Regaining Speed and Economy in Dispute Resolution, 2011; AAA Thirty

Steps to a Better Arbitration, 2011; AAA Managing Your First Arbitration, 2011; AAA

Webinar, Arbitrator Boundaries: What are the Limits of Arbitrator Authority?, 2011;

AAA The Ethics Behind Better, Faster, Cheaper in ADR, 2011; AAA Pro Se: Managing

Cases Involving Self-Represented Parties, 2010; AAA Arbitration Fundamentals and

Best Practices for New Arbitrators, 2010; AAA Arbitrator Ethics & Disclosure, 2010;

AAA Arbitration Awards: Safeguarding, Deciding & Writing Awards, 2010; AAA

Chairing an Arbitration Panel: Managing Procedures, Process & Dynamics, 2010; AAA

Dealing With Delay Tactics in Arbitration, 2010.

HONORS AND AWARDS

Mr. Carlson is a Fellow in the American College of Trial Lawyers. Fellowship in the

College “is extended only by invitation, after careful investigation, to those experienced

trial lawyers who have mastered the art of advocacy and whose professional careers have

been marked by the highest standards of ethical conduct, professionalism, civility and

collegiality.” www.actl.com. Membership in the College is limited to 1% of the total

lawyer population of any state.

Mr. Carlson is an Associate in the American Board of Trial Advocates. Associate

membership in ABOTA is limited to those trial lawyers who are “of high personal

character and honorable reputation,” who have tried at least twenty civil jury trials to jury

verdict as lead counsel (or equivalent), and who have received an affirmative vote of at

least 75% of the local chapter and National Board. www.abota.org

As a trial lawyer at Baker Botts, Mr. Carlson was Board Certified in Civil Trial Law by

the Texas Board of Legal Specialization. Board Certification in Civil Trial Law is

limited to those trial lawyers who have tried a minimum of twenty contested civil cases

(or equivalent) and who have passed a six hour written examination. Only 10% of Texas

lawyers are Board Certified.

Also as a trial lawyer at Baker Botts, Mr. Carlson was listed in The Best Lawyers in

America and was recognized as a “Texas Super Lawyer” by Law & Politics.

SPEECHES AND PUBLICATIONS

[3]

The following are speeches given and publications authored by Mr. Carlson during the

last ten years:

“Problem Solver, A Guide to Walk You Through What Typically Happens When Your

Lawsuit is Sent to Arbitration,” 77 Texas Bar Journal 146, 2014

Panelist, “Surviving Discovery in ED Texas and Beyond in the Electronic Age,” Eastern

District of Texas Bench Bar Conference, October 20-22, 2010

“Deposing the Inventor in a Patent Case,” Dallas Bar Association, Intellectual Property

Law Section, Dallas, September 2010

“Final Argument,” University of Houston Law Foundation, Dallas, December 2005

“Jury Argument Strategies for the Defendant,” The Jury Trial, University of Houston

Law Foundation, Dallas, August 2005

“Discovery of Electronic Records,” Winning Commercial Cases in Federal Court, Center

for American and International Law’s Institute for Litigation Studies and American Bar

Association, Section of Litigation, Plano, June 2005

“Deposing the Inventor in a Patent Case,” Dallas Bar Association, Intellectual Property

Law Section, Dallas, April 2004

BAR ASSOCIATIONS

Mr. Carlson is a member of the American and Dallas Bar Associations (Past President of

the Dallas Bar Association Business Litigation Section).

EDUCATION

Mr. Carlson received his J.D., with high honors, from the University of Texas School of

Law in 1978. At U.T. Law School, Mr. Carlson was a Chancellor, an Articles Editor on

the Texas Law Review, and member of the Order of the Coif. He received his B.A.

degree from Rice University in 1975.

June 2014

Karen Fitzgerald Karen Kohler Fitzgerald Dallas, Texas,

Karen solves people problems.

When you work, you work with people. When you own a business, you hire people. When people work together, problems exist. Karen solves those problems.

Karen is a different kind of lawyer. She's happy. She's holistic. She's honest. What does this mean for you? You will get Karen's candid assessment of your problem and her honest advice about what your options are. She won't tell you what you want to hear. Instead, she'll tell you how she sees it and she will walk you through your best options.

Sometimes, your choices will be good. Sometimes, none of your choices will be good. Sometimes, you won't have any options. And, in some cases, you will have a combination of all of these scenarios. Karen will walk you through the pros and cons of your various choices.

Karen's approach is more holistic than most. Karen looks not just at the narrow legal issues, but at the whole picture of how this legal matter fits in the big picture of your life and your business. Karen will help you think about what path is best for the big picture.

Karen is experienced. Karen is Board Certified in Labor and Employment law by the Texas Board of Legal Specialization and has been practicing law since 1989. She'd prefer that you not do the math to figure out exactly how long she's been practicing, but she's gained a lot of experience in all of those years.

Karen defines success for her clients in more than just dollars and cents. Sometimes, claims are very, very small. Some claims are extremely large. However, in Karen's opinion, the best result is when her client is satisfied with the outcome and understands it. That is Karen's goal in every case.

Not all lawyers love what they do. Karen's lucky in that she does. Karen enjoys shepherding her clients through difficult situations and actually solving the problems, not just fighting for the sake of fighting. Karen takes the counseling part of her practice very seriously, which is why she focuses so hard on giving her clients candid advice every step of the way. If her clients understand what is happening in their cases and why, she's doing her job right.

phone 214-265-9958 (Direct Dial)fax 214-265-7411 email karen@klbf.com

vCard

Page 1 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

7/16/2014http://www.klbf.com/CM/OurTeam/KarenFitzgerald.asp

Hiring a lawyer is a tricky and personal thing. Not every lawyer is right for every person. If you are looking for a lawyer who will simply do what you tell her to do, Karen is not the right lawyer for you. If you are looking for a lawyer who is going to give you her attention and give you candid, caring advice, then talk to Karen.

Karen represents and counsels individuals and businesses about numerous employment issues that include:

Discrimination claims of all types Retaliation claims Overtime/wage and hour claims Equal pay claims Employment contract claims Unpaid wages, bonuses and commissions Analysis of severance agreements Analysis of non-competition and non-solicitation agreements Drafting of employment contracts Drafting of physician employment agreements Family & Medical Leave act claims.

Karen hopes that her clients don't ever need to file a lawsuit. Unfortunately, many of her clients will need to sue. If that situation exists, Karen is ready to aggressively protect her client's rights.

For her small business clients, Karen focuses on helping the companies comply with state and federal laws. Karen also focuses on insuring that her small business clients do not get sued when it is time to terminate an employee. Problems occur in every business, but not every problem should result in a lawsuit. Karen's goal is to make sure that her small business clients don't get sued by their employees.

And, if a small business client is sued by a current or former employee, Karen stands ready to aggressively defend the lawsuit.

Karen has been named as a Super Lawyer in the Texas Monthly Super Lawyer's Edition for every year since 2005. Before that, Karen was featured as a Rising Star in the Texas Monthly's Super Lawyer Edition.

Karen was named as one of Texas's Best Lawyers in 2012's Dallas edition.

Karen is also a Neutral on the American Arbitration Association's Employment Law panel. www.adr.org.

In addition to her employment law expertise, Karen has a broad based commercial litigation and business litigation background. She has handled contract disputes, financial institution litigation, fraudulent and forged checks and negotiable instruments issues, insurance litigation, libel and slander, legal malpractice and fidelity insurance claims.

When she is not practicing law, Karen is usually riding her bicycle or doing Cross Fit because she is one of those obsessed Cross fitters and bike rider types.

Karen K. Fitzgerald

Page 2 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

7/16/2014http://www.klbf.com/CM/OurTeam/KarenFitzgerald.asp

Areas of Practice: Litigation Employment and Commercial Litigation and Disputes Discrimination Claims Overtime/Wage and Hour Claims Equal Pay Disputes Unpaid Wages, Bonuses and Commissions Severance Agreements Non-Competition Agreements Non-Disclosure Agreements Employment Contracts Contract Disputes Family & Medical Leave Act Litigation Financial Institution Litigation Fraudulent and Forged Checks or Negotiable Instruments Insurance Litigation Libel and Slander Claims Fidelity Insurance Litigation

Bar Admissions: Texas, 1989 U.S. District Court Northern District of Texas U.S. District Court Southern District of Texas U.S. District Court Western District of Texas U.S. District Court Eastern District of Texas U.S. Court of Appeals 5th Circuit

Education: The University of Texas School of Law, Austin, Texas J.D. Honors: Graduated with Honors Louisiana State University, Baton Rouge, Louisiana B.A. Major: Journalism

Published Works: Salvage and Recovery Under the Commercial Crime Policy, Annotated Commercial Crime Policy (2d Ed), American Bar Associate, (Editors Cole S. Kain & Lana M. Glovach), 2006 She Works Hard for the Money; Equal Pay Act of 1963 Update (Co-Author), HR Southwest

Seriously Outstanding

only 5% selected each year visit superlawyers.com

Page 3 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

7/16/2014http://www.klbf.com/CM/OurTeam/KarenFitzgerald.asp

Conference, October, 2004 Check Fraud and the Fidelity Insurer (Co-Author), VII Fid. L. J., 2001 Times May be Changing for Texas Employers (Co-Author), Texas Building Trends, March/April, 2001 The Dow Has Gone Crazy: What is an Insurer To Do?, Fidelity Law Association Meeting, Boston, October, 1999 Claims Asserted Against Insurance Professionals, Dallas Association of Insurance Women, April, 1999 The Loan Exclusion: Allocating Business Risks to the Banker, American Bar Association, National Institute on Financial Institution Bonds, November, 1998 Making the Case for Recovery Under the Financial Institution Bond, American Bar Association, Tort & Insurance Practice Section, Fidelity & Surety Law Committee, January, 1998 Wrongful Repossession and Personal Property Foreclosure: When Things Go Wrong, Advanced DTPA/Insurance/Consumer Law Course (Co-Author), State Bar of Texas, May, 1995 The Loan Exclusion: The Predominant Risk Allocator (Co-Author), American Bar Association, National Institute on Financial Institution Bonds, 1995 When is a Third Party Loss a Covered Claim? (Co-Author), American Bar Association, Tort & Insurance Practice Section, Fidelity & Surety Law Committee, August, 1994 Staying Out of the Courthouse: The Pros and Cons of Agreements to Arbitrate Employment Disputes, Personnel Law Update 1993, Council of Education Management, March, 1993 Recoveries Chapter, First Supplement to the Commercial Blanket Bond Annotated (Co-Author), TIPS Commercial Blanket Bond Annotated, 1991 Defending Insurers and Their Agents, Advanced DTPA - Consumer Law Course (Co-Author), State Bar of Texas, May, 1990

Representative Cases: American Airlines Employees Federal Credit Union v. Martin, 29 S.W.3d 86 (Tex. 2000) Knights of Columbus Credit Union v. Stock, 814 S.W.2d 427 (Tex. App. -- Dallas 1991) FDIC v. Firemens Ins. Co. of Newark, New Jersey, 109 F.3d 1084 (5th Cir. 1997) FDIC v. U.S. Fire Insurance Co., 50 F.3d 1304 (5th Cir. 1995) Fidelity Bank National Association v. Aldrich, 998 F.Supp. 717 (N.D. Tex. 1997)

Classes/Seminars Taught: Speaker, Co-Exist: Current Religious Discrimination Issues, Dallas Bar Association Labor & Employment Law Section, 2008 Panelist, Winning Strategies and Case Presentation in Employment Arbitrations---A

Page 4 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

7/16/2014http://www.klbf.com/CM/OurTeam/KarenFitzgerald.asp

Please note:

E-mail communication by you through this website does not establish an attorney-client relationship with Kleiman Lawrence Baskind Fitzgerald, LLP. We cannot agree to maintain the confidentiality of information and communications sent through this website. Please do not send us any information about your legal problem. If you are seeking legal representation, please fill out a questionnaire from the website. Our professional obligations require that before accepting any new client or new matter, we must determine whether there are any actual or potential conflicts with any of our existing or former clients. If you wish to inquire into becoming a client of the firm, please request a personal interview with

Conversation with Arbitrators, Tarrant County Bar Association Employment Arbitration Program, 2008 Co-Speaker, She Works Hard for the Money; Equal Pay Act of 1963 Update, North Texas Compensation Association, 2005 Speaker, Check Fraud and the Fidelity Insurer, Fidelity Law Association 2001 Meeting, Baltimore, 2001 Speaker, Everything You Always Wanted to Know About Employment Law But Were Afraid to Ask, National Association of Women in Construction, Dallas Chapter, 2001 Speaker, The Dow Has Gone Crazy: What is an Insurer To Do?, Fidelity Law Association Meeting, Boston, 1999 Speaker, Claims Asserted Against Insurance Professionals, Dallas Association of Insurance Women, 1999 Speaker, The Loan Exclusion: Allocating Business Risks to the Banker, American Bar Association, National Institute on Financial Institution Bonds, 1998 Speaker, Making the Case for Recovery Under the Financial Institution Bond, American Bar Association, Tort & Insurance Practice Section, Fidelity & Surety Law Committee Mid-Winter Meeting, 1998 Co-Speaker, When is a Third Party Loss a Covered Claim?, American Bar Association Annual Meeting, Tort & Insurance Practice Section, Fidelity & Surety Law Committee, 1994

Professional Associations and Memberships: Dallas Bar Association Member American Bar Association Member State Bar of Texas Member American Arbitration Association Employment Law Panel

Page 5 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

7/16/2014http://www.klbf.com/CM/OurTeam/KarenFitzgerald.asp

one of our attorneys. We will not consider any e-mail or other communication regarding new client representation other than a request for a personal interview. This email is not confidential and is not protected by the attorney-client relationship. No attorney-client relationship is created by sending this e-mail. You do not become a client of Kleiman Lawrence Baskind Fitzgerald, LLP by sending this email.

To contact Karen Kohler Fitzgerald via email, please use this link, or close notice.

Kleiman Lawrence Baskind Fitzgerald LLP | 8350 North Central Expressway, Suite 650, Dallas, Texas 75206 | Directions and Map

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Page 6 of 6Attorney Karen Fitzgerald, Kleiman Lawrence Baskind Fitzgerald LLP, Dallas, Texas

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A A A A R B I T R A T I O N R O A D M A P • P A G E 7

AAA Arbitration RoadmapSM

A GUIDE TO AAA ARBITRATION

A A A A R B I T R A T I O N R O A D M A P • P A G E 3

RoadmapAAA Arbitration Roadmap

The American Arbitration Association’s AAA Arbitration RoadmapSM shows how cases proceed under AAA

administration, from beginning to end, when using the AAA’s Commercial Arbitration Rules*. The AAA

Arbitration Roadmap also demonstrates how parties can positively influence the arbitration process in

terms of time and costs. The times portrayed here are based on a study of cases with claims between

$75,000 and $500,000 and are medians, meaning that half the cases in the study took less time and

half took more. For additional statistics, including timeframes for expedited and large complex cases,

please refer to the appendix. Also note that actual timeframes may differ significantly based on the facts

of a particular case.

1 15 60 112 217 218 267 297

Hearings

Timeline (in days)

Settlement AlternativesA full range of settlement options are available and may be appropriate prior to or during arbitration or

litigation. As the parties invest time and money into the arbitration proceeding, many settlement processes

lose their value. However, some processes, such as mediation, may become more viable as the parties

learn about each other’s positions and can more accurately measure the cost of continuing with the

arbitration. Parties often choose to mediate during the Preliminary Hearing and Information Exchange

phases of an arbitration proceeding.

Arbitration Phase DetailsEach phase of the arbitration process depicted above has a full-page description, including information

on time- and cost-saving opportunities, under the tab with the corresponding color.

* Timeframes and cost references may vary depending on the AAA Rules applicable to a particular arbitration.

The Commercial Arbitration Rules are used for illustrative purposes in this AAA Arbitration Roadmap.

Filing and Initiation

Arbitrator Selection

Filing andInitiation

Preliminary Hearing

InformationExchange &Preparation

Post-HearingSubmissions The Award

A A A A R B I T R A T I O N R O A D M A P • P A G E 4

RoadmapFiling and Initiation

The AAA commences administration of an arbitration when one party submits ademand for arbitration, a copy of the arbitration provision and the appropriate Filing Fee to the AAA. The AAA will acknowledge receipt to all parties and set a 15-day deadline for the respondent to file an answer and/or counterclaim.

Expected Costs

Filing Fees are based on claim amounts and are paid by the party that asserts the claim or counterclaim.

How You Can Manage Time and Cost

Be specific in your claims and answers. Clearly defining the disputed matters will make an early settlement more likely and will also focus the proceeding if it does not settle.

The parties are encouraged to inform the AAA of any unusual or complex aspects of the case that might affect the administration so that the process can be tailored to meet the parties’ needs. Depending on the complexity of the case, the AAA may involve the parties in an administrative conference shortly after filing to address these matters.

1 15 297

Timeline (in days)

Filing andInitiation The Award

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A A A A R B I T R A T I O N R O A D M A P • P A G E 5

RoadmapArbitrator Selection

After the answer period, the AAA assists the parties in selecting an arbitrator. The AAAobtains the parties’ input on the necessary qualifications and then provides a list ofprospective arbitrators and their biographies for all parties to review. The parties areencouraged to agree upon an arbitrator, but if they are unable to do so the AAA will establish a deadline for each party to independently state its preferences fromthose candidates on the list. The AAA will then invite the most mutually agreeablearbitrator to serve on the case.

Expected Costs

Partial refunds of Filing and Counterclaim Fees are available under many of the AAA’sfee schedules. However, no refunds are given after an arbitrator has been appointed.

How You Can Manage Time and Cost

Consider using a single arbitrator rather than a panel of three. This will have a significant effect on both the cost to the parties and the time it takes to get the matter heard.

Also review the panelists’ biographies prior to selection. The biographies containinformation on how much an arbitrator would charge, usually stated as an hourly or daily rate, as well as whether the arbitrator would charge for time other than that spent in hearings.

1 15 60 297

Timeline (in days)

ArbitratorSelection The Award

Arbitrator

SelectionPrelim

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RoadmapThe Preliminary Hearing

The Preliminary Hearing is a management meeting conducted by the arbitrator. It is usually the first timethe parties and the arbitrator discuss the case and is often conducted via conference call. Working with thearbitrator, the parties will identify the steps and actions needed to prepare for the evidentiary hearing andestablish a schedule for the exchange of information. The parties and the arbitrator will also establish datesfor the submission of final witness lists, exhibits and possibly pre-hearing briefs, depending upon the com-plexity of the matter. Finally, dates for the evidentiary hearing will be set. The result is a Scheduling Orderthat will serve as the parties’ framework for hearing preparations.

The parties will also be asked to pay a deposit to cover the arbitrator’s estimated fees and expenses for the scheduled hearings and anticipated study time. The due date for this deposit is usually 30 days prior to the first evidentiary hearing. Unused deposits are refunded at the conclusion of the case.

Expected Costs

The parties typically will incur between one and ten hours of compensation charges by each arbitrator for time spent before and during the Preliminary Hearing and in preparation of the Scheduling Order.

How You Can Manage Time and Cost

Parties can begin exchanging information at any time. There is no need to wait for the Preliminary Hearing and Scheduling Order, especially for routine and uncontroversial documents related to the dispute. This can significantly reduce the time spent in the next phase, Information Exchange and Preparation.

Parties may also stipulate and submit their own Scheduling Order to the arbitrator prior to the Preliminary Hearing; this allows the arbitrator and parties to focus only on the unresolved scheduling matters.

In cases involving three arbitrators, parties can stipulate to allow one neutral to resolve disputes which may arise during the information exchange phase; this will dramatically reduce the time and cost associated with resolving these types of disputes.

Pre-hearing briefs should serve to reduce the time spent in the evidentiary hearings and to give the arbitrator a clearer understanding of the case. Do not submit them as a matter of course unless they will accomplish these goals.

1 60 112 297

Timeline (in days)

Preliminary Hearing The Award

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RoadmapInformation Exchange and Preparation

Working within the timeframes set forth at the Preliminary Hearing, the parties exchange information and ready their presentations. The arbitrator addresses any impasses the partiesmay encounter regarding the exchange of information. At the conclusion of this stage, the partiesshould have completed preparations for presenting evidence and arguments on the dispute.Proposed exhibits and final witness lists are often submitted at the conclusion of this phase.

Expected Costs

The time spent by the arbitrator in this phase is proportional to the number of procedural mattersneeding resolution. In addition, the arbitrator will spend time reviewing the parties’ pre-hearing submissions, if any.

How You Can Manage Time and Cost

It is in this phase that the parties can have a profound effect on the overall cost and time it takesto get their dispute resolved. The parties are encouraged to cooperate on reasonable informationexchange, since relying on the arbitrator to resolve procedural matters will drive up costs andprolong the parties’ preparations.

Cooperative information exchange can also begin before the arbitrator is appointed, as the arbitrator’s involvement is only necessary for those matters on which the parties cannot agree.

Consider having pre-arranged status checks during this phase so that the arbitrator can facilitate any impasses as they arise. However, do not hesitate to cancel a status check if things are goingsmoothly–there is no need to incur unnecessary arbitrator compensation charges.

Consider preparing joint exhibits and stipulations of fact in order to streamline the hearings.

1 112 217 297

Timeline (in days)

Information Exchange& Preparation The Award

A A A A R B I T R A T I O N R O A D M A P • P A G E 7Inform

ation Exchange&

Preparation

Hearings

RoadmapThe Hearings

Parties present evidence and testimony to the arbitrator in a format that is similar to, but less formal than, a court proceeding. The hearings conclude when the arbitrator determines that each side has had a full opportunity to present its evidence.

Expected Costs

The arbitrator is compensated for the time spent in hearings and in reviewing evidence. The arbitrator is also reimbursed for reasonable expenses such as mileage, tolls and meals.

The Case Service Fee is assessed to each party that has a claim and is due before the first hearing.

How You Can Manage Time and Cost

Explore alternatives to live testimony: Stipulations, affidavits, video depositions and other mechanisms where permissible can substitute for witnesses at evidentiary hearings.

At the hearings, make every effort to adhere to the timeframes established for case presentation and witness testimony in order to avoid prolonging the hearings and incurring additional time and expense.

Postponed hearings are the biggest source of delay in arbitration proceedings. If a scheduling conflict arises, consider changing the order of witnesses, shifting the hours of the hearing or using videoconferencing as ways to keep the case on schedule. If a postponement is unavoidable,alert the case participants as soon as possible so that your request for a postponement can be accommodated. Some arbitrators also charge a fee for a hearing that is cancelled on short notice; please review the arbitrator’s terms of compensation on his/her biography to determine if such a charge will be assessed and under what conditions.

1 217 218 297

Timeline (in days)

Hearings The Award

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A M E R I C A N A R B I T R A T I O N A S S O C I A T I O N ’ S R O A D M A P • P A G E 7

RoadmapPost-Hearing Submissions

The arbitrator may keep the record open at the end of the hearing for a number of reasons, including: To accept additional documentary evidence that was unavailable at the hearing, to allow the parties a final opportunity to argue their positions in writing or to receive briefs on a specific issue that may have come up during the hearing.

If post-hearing submissions are necessary, parties typically file them within 30 days although this timeframe can be adjusted to meet the parties’ needs.

Expected Costs

The arbitrator is compensated for reviewing evidence and any post-hearing submissions, as well as drafting the award.

How You Can Manage Time and Cost

Forgo or limit post-hearing briefs, especially if pre-hearing briefs were submitted. If post-hearing briefs are necessary, consider focusing on those issues that are more complex.

Make sure the discussion on post-hearing submissions clearly addresses what can and cannot be submitted, and then abide by those limitations. Submitting unexpected and unsolicited material will most-likely delay the award while the parties and arbitrator determine what to do with the new material.

Make it possible for the arbitrator to decide all matters before him or her, including any claims for interest, costs and attorneys fees, by providing specific figures for these aspects of your damages.

1 218 267 297

Timeline (in days)

Post-HearingSubmissions The Award

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RoadmapThe Award

The award is due 30 days after the arbitrator closes the record and should address all claims raised in the arbitration. The award may direct one or more parties to pay another party a monetary amount or it may direct parties to take specific actions based on how the arbitrator decided the matters in the case.

Aside from addressing administrative matters unrelated to the merits of the case, the services provided by the arbitrator and the AAA are completed when the award is issued. Although parties often voluntarily comply with awards, enforcement is accomplished through a simple court proceeding.

Allocation of Costs

In the award, the arbitrator may apportion the arbitrator’s compensation and expenses andthe AAA fees among the parties in any way that the arbitrator deems appropriate.

Any unused deposits are returned to the parties.

How You Can Manage Time and Cost

Requesting the arbitrator to provide findings of fact or conclusions of law can increase costs and delay the rendering of the award.

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Timeline (in days)

The Award

Appendix

The following statistics are the result of a study of business-to-business arbitration cases administered by the AAA under the AAA’s Commercial Arbitration Rules and awarded in 2003. The findings reflect the number of days cases took to reach certain milestones between filing and the award.

The 25th Percentile indicates the average number of days that the first 25% of the cases studied took to reach a particular milestone. The 75th Percentile indicates the average number of days that the first 75% of the cases studied took to reach a particular milestone. The Median is the mid-point, meaning that half the cases studied took less time and half took more time to reach a particular milestone.

A A A A R B I T R A T I O N R O A D M A P • P A G E 1 1

Up to $75,000 Selecting Arbitrator Information Exchange Hearing Days The Award25th Percentile 33 104 1 126Median 47 141 1 17575th Percentile 75 196 2 259

$75,000 – $499,999 Selecting Arbitrator Information Exchange Hearing Days The Award25th Percentile 43 161 1 216Median 60 217 2 29775th Percentile 91 309 4 408

$500,000 – $999,999 Selecting Arbitrator Information Exchange Hearing Days The Award25th Percentile 46 182 2 273Median 67 279 4 35675th Percentile 98 344 6 455

$1,000,000 – $9,999,999 Selecting Arbitrator Information Exchange Hearing Days The Award25th Percentile 50 215 3 309Median 71 293 5 41475th Percentile 114 433 8 563

$10,000,000 & Up Selecting Arbitrator Information Exchange Hearing Days The Award25th Percentile 43 217 5 347Median 63 315 8 47475th Percentile 90 447 13 597

Claim Size

Ap

pendix

© 2007 American Arbitration Association, Inc. All rights reserved. These Rules are the copyrighted property of the American Arbitration Association (AAA) and are intended to be used in conjunction with the AAA's

administrative services. Any unauthorized use or modification of these Rules may violate copyright laws and other applicable laws.

146 Texas Bar Journal • February 2014 texasbar.com

Problem SolverA guide to walk you through

what typically happens whenyour lawsuit is sent to arbitration.

Problem SolverA guide to walk you through

what typically happens whenyour lawsuit is sent to arbitration.

texasbar.com/tbj Vol. 77, No. 2 • Texas Bar Journal 147

Your client was sued in federal court for millionsof dollars on a commercial contrac ts claim. You foundan arbitration provision in one of the relevant con-trac ts and, after consultation with your client, mov edto compel arbitration. Over the plaintiff’s opposition,the distric t court judge granted your motion, orderedthe claim to arbitration, and stayed the litigationpending a final award in an arbitration proceeding.

Good reasons support your client’s preference forarbitration over litigation. With an effec tive (“muscu-lar” is the current popular term) single arbitrator orthree-person arbitration panel, your client’s disputeshould be resolved efficiently.1,2,3 And the prevalentmyth that arbitrators typically “split the baby,” or issuecompromise awards, is false.4

FIRST STEPSSo, what happens now? The next move belongs to the

plaintiff, now called the claimant, who will file a claim(called a demand) with the administering organizationnoted in the arbitration provision, such as the AmericanArbitration Association or Judicial Arbitration andMediation Services. The claim need not have the formal-ity of a federal court complaint or state court petition.Typically, all that is required is a short one-sentencedescription of the nature of the claim, the names andaddresses of the parties, the amount claimed, and therequested location of the hearing.5

When you receive the claim, review the arbitrationprovision again. It will likely select a set of governingrules, such as the AAA Commercial Arbitration Rules6

or JAMS Comprehensive Arbitration Rules & Proce-dures. The arbitration provision may select a locale forthe proceeding, set forth a procedure for selection of thearbitrator, state whether (and to what extent) discoverywill be allowed and whether evidence rules will apply,and will likely provide that the award of the arbitrator orpanel is binding.

Unless you are already familiar with them, it is a goodidea to read the selected rules from start to finish. Payparticular attention to early deadlines. Under the rules ofthe AAA and JAMS, the demand for arbitration and anycounterclaim may not be changed after appointment ofthe arbitrator, absent arbitrator consent.7 Under theAAA rules, an objection to the arbitrability of a claimmust be made no later than the answering statement’s fil-ing, and a request for a reasoned award must be made inwriting before appointment of the arbitrator.8 Whilemany arbitrators freely reset these early deadlines afterappointment, some do not.

SELECTION OF ARBITRATOR(S)The arbitration provision may say whether there will

be one arbitrator or a three-person panel. Under AAArules, absent agreement on this issue and subject to afinancial hardship exception, there will be a three-personpanel for claims of $1 million or more and a single arbi-trator for claims of less than that amount.9 Under theJAMS rules, there will be a single arbitrator unless theparties have agreed otherwise.10

The arbitration provision may also provide a methodfor arbitrator selection. Absent agreement on this issue,the selected rules will govern. Under a typical method,the administering organization provides the parties with aslate of candidates from a roster or panel of arbitratorsmaintained by the organization. The parties strike candi-dates they deem objectionable and number the remainingcandidates based on preference. The organization thenselects the arbitrator(s) most preferred by both parties.11

After arbitrator selection, under the rules of mostadministering organizations, the arbitrator must discloseinformation that might give rise to a justifiable doubtabout his or her impartiality, including information aboutrelationships to the parties and counsel.12 The partiesthen have an opportunity to object to the selected arbi-trator based on the disclosed information.

Arbitrator selection is important. You want a capablearbitrator whose professional background and experiencesuggest that the arbitrator will be fairly receptive to yourclaim or defense. You want an arbitrator unburdened byrelationships to the opposing party or opposing counsel.You might want an arbitrator with experience in a partic-ular industry or experience with a particular type of tech-nology or type of case (for example, a labor lawyer for anemployment case or an intellectual property lawyer for apatent case). Investigate the candidates. Check theirwebsites. Use a search engine. Review their social mediaprofiles. Ask other lawyers and any colleagues who regu-larly arbitrate if they know of the candidates. Someadministering organizations may allow the parties to sub-mit written questions to the candidates or to conducttelephone interviews of the candidates (with counsel forboth parties being on the call).

If you learn of an undisclosed relationship between thearbitrator and the opposing party or counsel that createsa question about the arbitrator’s impartiality, you may betempted to withhold that information for possible lateruse in support of a court action to vacate an adverseaward. Resist that temptation. Courts uniformly holdthat if a party is aware of undisclosed information thatcalls into question an arbitrator’s fitness to serve and doesnot object to the arbitrator before the final award, theobjection is waived.13 Some courts have found waivereven with respect to information that a party learned after

148 Texas Bar Journal • February 2014 texasbar.com

the award when it is determined that the party couldhave discovered the information earlier with a reasonableinvestigation.14 Accordingly, if the undisclosed informa-tion reasonably invites further investigation, investigateimmediately. If the undisclosed information furnishes afair basis to object to the arbitrator, object immediately.The administering organization will likely receive andmake a determination on the objection without notice tothe arbitrator, so the parties can object without risk ofoffending the arbitrator.

THE PRELIMINARY HEARINGAfter arbitrator selection, the administering organiza-

tion will schedule a preliminary hearing, which usuallytakes place by telephone. The organization or arbitratorwill probably provide an agenda for the hearing,15 and youmay be asked to confer with opposing counsel before-hand. At the preliminary hearing, the arbitrator willwant to create a schedule for the entire case, set limits ondiscovery, create a gating procedure for motions, and dealwith housekeeping matters, such as filing and servicemethods and rules concerning communication with thearbitrator. Be prepared to give a short, persuasive, non-argumentative description of your claim or principaldefenses and to explain what discovery you need. Thearbitrator will probably want to lock in dates for the finalevidentiary hearing, so have calendar information handyfor yourself and any client representatives and importantwitnesses that will need to attend the final hearing. For amedium-sized case, expect the arbitrator to want to setthe final evidentiary hearing four to six months from thepreliminary hearing.

Consider the possibility of submitting your case to thearbitrator through documents (affidavits, relevant con-tracts, correspondence, etc.), perhaps followed by a tele-phone hearing for argument and discussion, as opposed tosubmission by an in-person hearing with witnesses. Casesbest suited for document submission are small-dollar casesin which the arbitrator will not have to make witnesscredibility determinations. Ordinarily, the arbitrator willallow submission via documents if both parties agree to it,but will provide for an in-person hearing if either or bothparties request one.

At the preliminary hearing, the arbitrator may ask theparties what type of award they want.16 The three mostcommon types of awards are standard, findings of fact andconclusions of law, and reasoned. A standard award is barebones—it simply announces who wins and, if the award isin favor of a party seeking money damages, how much isawarded. A reasoned award sets forth the bases for thearbitrator’s award and will probably entail an additionalexpense because the arbitrator will want to charge for thetime needed to prepare the award. Talk to your client

about the form of the award; in the event of an adverseresult, your client may want an explanation for the loss.

DOS AND DON’TS FOR THE ENTIRE PROCEEDINGYour behavior before an arbitrator should be guided by

the same common sense principles that guide your behav-ior before a judge. In a jury case, if your relationship withthe trial judge sours, you have the protections that a jurywill decide the facts and that an adverse result can beappealed. In an arbitration proceeding, you have neitherof those protections. Be professional and courteous toopposing counsel. Be on time. Do not interrupt or talkover the arbitrator. Above all else, be honest. Do not mis-state legal authority or evidence.

Do not call the arbitrator “Your Honor” unless thearbitrator previously was a judge. Unless—and until—told otherwise, address the arbitrator as “Arbitrator Jones.”

Do everything possible to meet all deadlines and topresent your case at the time originally selected for thefinal evidentiary hearing. Most arbitrators are loath topostpone or continue a final hearing setting, absentextraordinary circumstances.

EXCHANGE OF INFORMATIONAND THIRD-PARTY DISCOVERY

You likely will be forced to be efficient in the use ofdiscovery. (Party discovery in arbitration is more accu-rately termed “exchange of information.”) Most arbitra-tors will limit deposition discovery (by the number ofdeponents or the overall number of hours) and documentdiscovery and may not allow interrogatories and requestsfor admission.

Obtaining a deposition or document from a third partycan be problematic. Although the arbitrator can sign thesubpoena, you will have to enlist the assistance of a courtto enforce it.

The Federal Arbitration Act provides that “[t]he arbi-trators selected . . . may summon in writing any person toattend before them or any of them as a witness and in aproper case to bring with him or them any book, record,document, or paper which may be deemed material asevidence in the case.”17 This language suggests that docu-ments can be obtained from a third party only at the finalevidentiary hearing. Federal appeals courts consideringthis language have reached different conclusions con-cerning whether (and how) parties to an arbitration pro-ceeding can obtain documents from a third party beforethe final hearing. The 2nd and 3rd U.S. Circuit Courts ofAppeals have held that, under the FAA, documents can-not be obtained from a third party in advance of the finalevidentiary hearing.18 The 8th Circuit, however, reacheda different conclusion, reasoning that “implicit in anarbitration panel’s power to subpoena relevant docu-

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ments for production at a hearing is the power to orderthe production of relevant documents for review by aparty prior to the hearing.”19 The 4th Circuit has ap-proved pre-final hearing document production from athird party in cases of “special need or hardship.”20 Somecourts have approved a procedure by which the arbitratorconvenes a preliminary hearing, to be attended by thearbitrator and parties, before the final hearing, for thesole purpose of having a third party appear and producedocuments in response to a subpoena.21 The 5th Circuithas not spoken on this issue.22

If the third party witness is in Texas, consider having aTexas court issue the subpoena and urging the applicabil-ity of the Texas Arbitration Act, which expressly author-izes obtaining a document production from a third partybefore the final hearing.23

MOTION PRACTICEMost arbitrators create a mechanism for limiting motions

because extensive motion practice is inconsistent withthe efficiency goal of arbitration. A typical motion-gatingmechanism might require the parties to confer beforeallowing the movant to file a short (one- or two-page)letter explaining the proposed motion. The arbitrator canthen act on the letter, ask for a short response, set duedates and page limits for any additional briefing, if any,and perhaps set a telephone hearing.

Motions for summary judgment are rarely granted inarbitration. The federal and Texas arbitration acts bothprovide that an award may be vacated when the arbitra-tor refuses to hear material evidence,24 and some arbitra-tors believe that granting a summary judgment in anarbitration proceeding potentially subjects the award torisk of vacatur under these provisions. AAA CommercialArbitration Rule R-33 provides that an arbitrator canallow the filing of a dispositive motion and make rulingson the motion only if “the moving party has shown thatthe motion is likely to succeed and dispose of or narrowthe issues in the case.”

THE FINAL EVIDENTIARY HEARINGThe arbitrator will likely schedule a telephone hearing

two to four weeks before the final evidentiary hearing todiscuss the final hearing. He or she will have an agendafor this call, but you should be prepared to ask questions.Will rules of evidence be applied? How should exhibits beorganized? Will there be an opportunity to file pre-hear-ing briefs? Will there be opening statements? Closingarguments? Does the arbitrator prefer to see and hearvideotaped depositions played at the hearing or simplyto receive highlighted transcripts? Does the arbitrator

prefer copies of paper exhibits, or would projecting thedocument on a screen be helpful? Should proof of attor-neys’ fees be offered at the hearing or later? For proof ofattorneys’ fees, does the arbitrator expect testimony, orare redacted billing records sufficient? May witnesses bepresented by telephone? What are daily start and stoptimes?

The arbitration provision may say whether rules of evi-dence will be applied at the final evidentiary hearing. Inthe absence of such guidance, under the AAA’s Commer-cial Arbitration Rules, “[c]onformity to legal rules of evi-dence shall not be necessary,” but the arbitrator has thepower to exclude “cumulative or irrelevant” evidence andmust honor legal privileges such as the attorney-clientprivilege.25

At the final evidentiary hearing, be efficient and non-repetitive. Consider agreeing with the other side to atime limit on presentations. Make every effort to com-plete presentation of the evidence within the number ofdays allocated for the final evidentiary hearing. If thearbitrator has already said that evidence rules will not beapplied, do not make frequent legal objections. Advisethe arbitrator as early as possible of any scheduling issues,such as the need to call a witness out of order. If you areclaiming pre-judgment interest, have an interest calcula-tion with citation to the relevant statute or other legalauthority. Have highlighted copies of any key cases. Donot be surprised if the arbitrator questions witnesses.

At the final evidentiary hearing, be efficient and nonrepetitive. Consideragreeing with the other side to a time limit on presentations. Make everyeffort to complete presentation of the evidence within the number of daysallocated for the final evidentiary hearing. If the arbitrator has alreadysaid that evidence rules will not be applied, do not make frequent legalobjections. Advise the arbitrator as early as possible of any schedulingissues, such as the need to call a witness out of order.

150 Texas Bar Journal • February 2014 texasbar.com

AFTER THE AWARDOnce an award is issued, an arbitrator can amend or

modify it only for clerical or computational errors.26 Donot, therefore, file a motion for rehearing or write thearbitrator a letter asking for reconsideration.

If you lose, you will be tempted to file a court actionseeking to vacate the award. Because the grounds for set-ting aside arbitration awards are exceedingly narrowunder both the FAA and the Texas Arbitration Act,most court actions seeking vacature fail. The 7th U.S.Circuit Court of Appeals recently cautioned: “[C]hal-lenges to commercial arbitration awards bear a high riskof sanctions.”27

If you are the claimant and obtain an award that grantsmoney damages and the other side does not promptly pay,file an action in court seeking confirmation of the award.A court order or judgment confirming an arbitrationaward is enforceable in the same manner that any otherjudgment is enforceable.

CHECKLISTHere is a checklist for the major events and activities

that occur in most arbitration situations:

• Review the arbitration agreement and the applicablearbitration rules. Confirm that any preconditions (suchas a requirement for mediation) have been met. Calen-dar early deadlines.

• Prepare and file your demand for arbitration or answerany counterclaim.

• Practice due diligence when researching potentialarbitrator candidates. Object if you learn of informa-tion that reasonably calls into question a candidate’simpartiality.

• To prepare for the preliminary hearing, go over anyagenda provided by the administering organization orarbitrator, consult with opposing counsel if requestedto do so, and have calendar information available sothat the date(s) for the final evidentiary hearing maybe locked in.

• Initiate discovery at the earliest permissible time, par-ticularly with respect to subpoenas that will need to beserved on third parties.

• There will usually be a telephone hearing two to fourweeks before the final evidentiary hearing to discussthe final hearing. Be prepared to ask questions that willassist you.

• Work with opposing counsel to create a single book forthe final evidentiary hearing that contains all claimantand respondent exhibits without duplication.

• If necessary, arrange for a court reporter to report thefinal hearing and for a technical consultant to overseeelectronic presentation of documents and recordeddepositions.

• If allowed, prepare and serve a pre-hearing brief.

• Prepare the deposition excerpts you will want to offeras evidence at the final hearing.

• For disputed legal issues, have highlighted copies ofcases and statutes at the final hearing. If you are claim-ing prejudgment interest, have an interest calculationwith citation to supporting legal authority.

• Interview your witnesses, then prepare and go overdirect examinations together. For the other side’s wit-nesses, outline their depositions, marshal documentsrelevant to each witness, and prepare cross-examina-tion outlines.

• Prepare your opening statement. Create an initial out-line for a closing argument.

• If an award is not paid in a timely manner, move incourt to confirm the award. If an award is unfavorable,analyze the provisions of the Federal Arbitration Act,the Texas Arbitration Act, if applicable, the arbitra-tion agreement, and the relevant arbitration rules todetermine if you have a realistic basis to challenge theaward, such as by an action to vacate. TBJ

NOTES1. A civil lawsuit can easily take two years or more at the trial court level and take

another year or more before final resolution on appeal. By contrast, the AAAfound that the median time to final award for moderate-sized arbitration cases(claims between $75,000 and $500,000) was 9.9 months from filing of the demandand just six months from the preliminary hearing. https://apps.adr.org/ecenter/roadmap/index.htm.

2. Civil lawsuits can become bogged down in excessive and expensive pretrial dis-covery and motion practice. In most arbitration proceedings, the arbitrator willlimit deposition and document discovery, may disallow interrogatories andrequests for admission altogether, and will take steps to minimize or eliminatemotion practice. Because of the absence of a jury in arbitration proceedings,lengthy jury charges, motions in limine, and motions for judgment as a matter oflaw are entirely unnecessary. These features of arbitration reduce costs as com-pared to civil litigation.

3. Under both the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and the Texas Arbi-tration Act, Tex. Civ. Prac. & Rem. Code, ch. 171, the grounds for setting asidean arbitration award are limited to extraordinary situations such as corruption,fraud, evident partiality, or a refusal to hear material evidence.

4. A study of AAA commercial cases in which awards were issued in 2012 showedthat 18 percent of such awards denied the claim outright (strong respondent win)and 52 percent awarded 81 percent or more of the amount sought by the claimant(strong claimant win). In only 5 percent of these cases was the award in the range

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of 41 percent to 60 percent of the amount claimed. http://go.adr.org/nosplit. Stud-ies of cases awarded in 2010 and 2005 also showed that most arbitration awardsare decisively in favor of one party or the other. http://images.go.adr.org/Web/AmericanArbitrationAssociation/%7Bc5bfac41-5971-406d-bf4b-675e4656c6da%7D_SplittheBaby_2010Data.pdf; http://images.go.adr.org/Web/AmericanArbitrationAssociation/%7B401cb4ff-53a1-4178-b26a-57d7d5909012%7D_SplittheBaby_2007Data.pdf.

5. E.g., AAA Commercial Arbitration Rules (hereinafter AAA Rules) R-4(e). TheCommercial Arbitration Rules were amended effective Oct. 1, 2013. The oldrules continue to apply to cases filed before Oct. 1, 2013.

6. The AAA Commercial Arbitration Rules, which apply to “domestic commercialdispute[s],” are supplemented by a set of Expedited Procedures for cases where noclaim exceeds $75,000 and a set of Procedures for Large, Complex CommercialDisputes for cases where any party claims $500,000 or more. Id. R-1(b), (c). Inaddition, the AAA has separate sets of rules for employment, construction, willsand trusts, collective bargaining, and healthcare payor/provider disputes. TheAAA’s international division, the International Centre for Dispute Resolution,has its own International Dispute Resolution Procedures for international dis-putes. The AAA recently adopted Optional Appellate Arbitration Rules that,when agreed to by the parties, provides a streamlined procedure for review ofawards by an appellate arbitral panel.

7. AAA Rules, supra note 5, R-6(b); JAMS Comprehensive Arbitration Rules &Procedures (hereinafter JAMS Rules) R. 10.

8. AAA Rules, supra note 5, R-7(c), R-46(b).9. AAA Procedures for Large, Complex Commercial Disputes L-2(a),(b).10. JAMS Rules, supra note 7, R-7(a).11. AAA Rules, supra note 5, R-12(a),(b); JAMS Rules, supra note 7, R. 15(b),(c).12. E.g., AAA Rules, supra note 5, R-17(a).13. E.g., Infobilling, Inc. v. Transaction Clearing, LLC, No. SA-12-CV-01116-DAE,

2013 WL 1501570, at *3 (W.D. Tex. Apr. 10, 2013) (plaintiff waived complaintthat arbitrator and defendant’s counsel had offices in the same 10-story buildingwhen plaintiff learned of that relationship at the arbitration hearing and did notobject); Burlington N. R.R. v. TUCO, Inc., 960 S.W.2d 629, 637 n.9 (Tex. 1997)(“[A] party who learns of a conflict before the arbitrator issues his or her decisionmust promptly object to avoid waiving the complaint.”); Skidmore Energy, Inc. v.Maxus (U.S.) Exploration Co., 345 S.W.3d 672, 683-84 (Tex. App.—Dallas 2011,pet. denied) (appellants waived complaint that an arbitrator was on the board ofdirectors of a company that had done business with appellees when appellants had“actual knowledge” of this relationship for years before the arbitration and failedto object.). AAA Commercial Arbitration Rule R-17 provides that the duty todisclose applies to parties, as well as to the arbitrator, and states that “[f]ailure onthe part of a party . . . to comply with this rule may result in the waiver of theright to object to an arbitrator. . . .”

14. E.g., Dealer Computer Servs., Inc. v. Michael Motor Co., No. 11-20053, 2012 WL3317809, at *3 n.4 (5th Cir. Aug. 14, 2012) (“Federal case law holds that arbi-trating parties have a reasonable duty to investigate information of potential par-tiality.”); Lucent Techs., Inc. v. Tatung Co., 379 F.3d 24, 28 (2d Cir. 2004) (“[W]ehave declined to vacate awards because of undisclosed relationships where thecomplaining party should have known of the relationship . . . or could havelearned of the relationship ‘just as easily before or during the arbitration ratherthan after it lost its case.’ ”) (citation omitted). In Mariner Fin. Grp. Inc. v. Boss-ley, 79 S.W.3d 30, 33 (Tex. 2002), a five-justice majority of the court declined todecide whether, as a matter of Texas law, parties to an arbitration proceeding havea “duty to discover” facts that might, post-award, furnish a basis to challenge theaward. Four concurring justices stated that “[a]n arbitration award should not bevacated for ‘evident partiality’ based solely on a failure to disclose if the partyseeking to vacate the award could reasonably have been expected to know theundisclosed facts.” Id. at 35-36.

15. A comprehensive preliminary hearing checklist is provided by AAA PreliminaryHearing Procedures P-2.

16. R-46(b) of the AAA Commercial Arbitration Rules provides that the awardmust be a reasoned award if the parties requested a reasoned award in writingbefore arbitrator appointment or if “the arbitrator determines that a reasonedaward is appropriate.” Rule 24(h) of the JAMS Comprehensive Arbitration Rules& Procedures provides that unless the parties have agreed otherwise, “the Awardshall . . . contain a concise written statement of the reasons for the Award.”

17. 9 U.S.C. § 7. 18. Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 216-17

(2d Cir. 2008); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407-11(3d Cir. 2004).

19. In re Sec. Life Ins. Co. of Am., 228 F.3d 865, 870-71 (8th Cir. 2000). 20. COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 278 (4th Cir. 1999).

21. E.g., Alliance Healthcare Servs., Inc. v. Argonaut Private Equity, LLC, 804 F. Supp.2d 808, 810-11 (N.D. Ill. 2011).

22. In 2010, Chief Judge Fitzwater of the Northern District of Texas sided with the2nd and 3rd Circuits, holding “that § 7 of the FAA does not authorize arbitratorsto compel production of documents from a non-party, unless they are doing so inconnection with the non-party’s attendance at an arbitration hearing.” EmpireFin. Grp., Inc. v. Penson Fin. Servs., Inc., No. 3:09-CV-2155-D, 2010 WL742579, at *3 (N.D. Tex. Mar. 3, 2010).

23. Tex. Civ. Prac. & Rem. Code § 171.051.24. 9 U.S.C. § 10(a)(3); Tex. Civ. Prac. & Rem. Code § 171.088(a)(3)(C).25. AAA Rules, supra note 5, R-34(a),(b),(c). The relevant provisions of the JAMS

Comprehensive Arbitration Rules & Procedures are similar. JAMS Rules, supranote 7, R. 22(d).

26. Under the AAA’s Commercial Arbitration Rules, upon request of a party madewithin 20 days of an award, an arbitrator may “correct any clerical, typographical,or computational errors,” but “is not empowered to redetermine the merits of anyclaim already decided.” AAA Rules, supra note 5, R-50. The JAMS Comprehen-sive Arbitration Rules & Procedures similarly allow for correction of “any compu-tational, typographical or other similar error.” JAMS Rules, supra note 7, R. 24(j).

27. Johnson Controls, Inc. v. Edman Controls, Inc., Nos. 12-2308 & 12-2623, 2013WL 1098411, at *7 (7th Cir. Mar. 18, 2013).

LARRY D. CARLSONwas a trial lawyer at Baker Botts in Houston and Dallas for 32 years.At the end of 2010, he left the firm to found Carlson Arbitration(carlsonarbitration.com), and he now limits his professional activityto service as an arbitrator, primarily in cases administered by theAmerican Arbitration Association.

The Military and Veterans Law Section presents: “Handling a Case: From Initial Call Through Appeal”

April 11-12, 2014 - Moody Gardens (Galveston)MCLE credit pending

Don’t miss these great topics while satisfying your 1st year accreditationrequirement for VA accreditation! Register for one or both days!

Friday: Tips and Best Practices from Intake to Appeal• Civil & PI Voir Dire & Jury Selection After Tort Reform - Wayne Fisher• Criminal Defense Cases Including Evidence Development and Demonstratives - Mike Guarino• Tips and Best Practices for Dealing With the Media - Brian Wice • Tips On Rendering Effective Assistance of Counsel In Criminal Cases - Randy Schaffer• Understanding Veteran’s Issues For Civil & Criminal Cases - Pat McCann• Assisting Incarcerated Veterans Who Have PTSD - Ted Jarvi

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