One arbitrator’s view of how you can structure the discovery process.
The Agreement Controls
Discovery in arbitration, like the arbitration process itself, starts with the parties’ agreement. The basic arbitration concept stems from contractual parties who have anticipated potential problems and designated arbitration as their chosen dispute resolution process. As a result, I, like most arbitrators, look first to the parties’ contract for guidance. If the parties have specified the types and quantity of discovery permissible in the arbitration clause, then the contract controls. As the arbitrator, my job at that point is to fairly and objectively enforce the parties’ agreement, not to superimpose what I think best or what one side now wishes they had included in the contract.
But what if the contract is silent? Perhaps, as is often the case, the parties identified binding arbitration, the applicable forum, and the governing rules, but neglected to mention discovery. If the contract is silent on the issue, then I still focus on party agreement. Have the parties met and conferred and orally agreed upon the discovery parameters they would like to follow in the arbitration? If so, then again, my job as the arbitrator is to fairly and objectively enforce the parties’ discovery agreement. If not, perhaps with my nudging, they wish to create a discovery plan now. Instead of an “order,” I give the parties time to meet and confer and craft a sensible, cost-effective discovery plan.
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