Prehearing Motions

Although arbitration is an informal process, a variety of matters may be the subject of prehearing motions, such as the appropriateness of arbitration, hearing locale, and postponements.

 

Motions Regarding the Appropriateness of Arbitration
Any party may challenge the appropriateness of arbitration. A party may request that the arbitrators dismiss the arbitration and refer the parties to their remedies at law. One type of case that may be appropriate for such a dismissal is a case in which claims are asserted against parties who have not agreed to arbitrate. Since such parties may not agree to participate in arbitration, a referral to legal remedies may avoid multiple proceedings and ultimately conserve legal resources.

Motions to Dismiss Because of the Passage of Time
The Uniform Code contains an eligibility provision, which states that no dispute, claim, or controversy can be submitted to arbitration if six (6) years have elapsed from the occurrence or event giving rise to the claim. This time period may be extended by court proceedings. The arbitrators should also be aware that a statute of limitations may preclude the awarding of damages even though the claim is eligible for submission to arbitration.

 

Motions to Sever or Consolidate Claims or Parties
The Uniform Code provides that the Director may determine preliminarily whether to join, consolidate, or sever various arbitration matters. All final determinations with respect to joinder, consolidation, or severance are made by the arbitration panel. When deciding such motions, arbitrators should consider commonality of time, parties, transactions, issues, or prejudice to any party. Each motion should be decided on its own merits.

 

The Uniform Code provides that persons may join in one action as claimants if they assert any right to relief jointly, severally, or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any questions of law or fact common to all these claimants will arise in the same action. Persons also may be joined as respondents if there is asserted against them jointly or severally any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any questions of law or fact common to all respondents will arise in the action.

 

Motions to Change the Location of the Hearing
The Director determines the time and place of the initial hearing. Arbitrators decide the time and place of subsequent hearings. The general policy in cases involving customers is to conduct the hearing wherever the customer resided when the dispute arose or in the nearest major city. Parties may argue, however, that a case should be heard at another location based on the location of witnesses and documents and the convenience of the parties. Arbitrators always have the authority to change the location of a hearing.

 

Motions to Bar a Responding Party from Presenting Any Facts or Defenses
The Uniform Code provides that any responding party who pleads only a general denial, who fails to specify all available defenses, or who fails to answer, may, upon written objection, be barred from presenting any facts or defenses at the time of the hearing. All parties should be given an opportunity to respond to such an application before the arbitrators bar the presentation of facts and defenses. Arbitrators should review the case history carefully when considering such a request. The prejudice to a party who has not received a timely answer should be weighed against the prejudice to a party who will be precluded from asserting any facts and/or defenses at the hearing.

 

Application to Postpone the Hearing
Arbitrators may, in their discretion, postpone any hearing(s) either on their own initiative or at the request of any party to the arbitration. The Uniform Code states that any party requesting a postponement, after the arbitrators have been appointed, shall deposit a fee equal to the initial deposit of hearing session fees for the first adjournment and twice the initial deposit of hearing session fees, not to exceed $1,000, for a second or subsequent adjournment requested by that party. The Director or the arbitrators may waive the deposit of the adjournment fee. If the arbitrators do not grant the postponement, the deposit is returned. If the postponement is granted, the arbitrators may assess the fee in the final award. Arbitrators may, upon receiving a third request consented to by all parties, dismiss the arbitration without prejudice to the claimant filing a new claim.

 

A party may request that the arbitrators postpone a hearing for a variety of reasons, such as the sudden inability of a necessary party, counsel, or material witness to appear. In deciding whether to grant a postponement, the arbitrators should consider the following:

• fairness to the parties,
• the consent or objection of the opposing party,
• the merits of the request,
• previous postponements,
• the burden placed on the panel, and
• the ability to conduct a productive hearing.
  
  

While the Uniform Code does not limit the number of times the arbitrators may postpone a hearing, they should be mindful that one of the goals of arbitration is to provide a speedy method for resolving disputes. Federal and state arbitration statutes permit parties to move to vacate arbitration awards by alleging that arbitrators exceeded their authority by refusing to grant a postponement. Nevertheless, in a majority of those cases, the courts have upheld the arbitrators' award. Cases do exist, however, in which the courts vacated an award when the arbitrators' refusal to adjourn was found to be unreasonable.

 

Accommodations for Senior or Seriously Ill Parties and Witnesses
Arbitrators have the authority to make accommodations for senior or seriously ill parties and witnesses. For example, hearings may be expedited; accommodations regarding the manner or scheduling of testimony may be made; and depositions of witnesses may be permitted.

 

It is the responsibility of the party, witness, or the attorney for the senior or seriously ill party to bring the situation to the attention of the arbitrators. Once notified, every effort should be made to accommodate that party or witness.

 

Important to hearing efficiency and fairness, arbitrators must act quickly to prevent abuse or disruption of the process. When arbitrators are determining the reasonableness of requested postponements or adjournments, they should be mindful of the health and age of a party or key witness among the facts or circumstances under consideration.