Before the Hearing

The staff will send the pleadings to the arbitrators upon appointment to a particular case. The arbitrator is required to read the pleadings thoroughly before the hearing begins. While reading the pleadings, the arbitrator should look for any potential conflicts. Arbitrators should know that attorneys are often retained by parties shortly before a hearing commences, creating last-minute conflicts for the arbitrators. Such conflicts should be disclosed immediately.

Arbitrators should not make independent factual investigations. The arbitration case belongs to the parties, and the parties should present the facts as they wish. Nothing, however, prohibits an arbitrator from reading the text of a rule, statute, or legal citation referred to in a party’s pleading (e.g., if the complaint charges a violation of a suitability rule, the arbitrator may read the rule).

When in doubt about an issue, legal or otherwise, arbitrators should request briefs from the parties. If cases are cited in a party's motion or brief, and the arbitrators wish to read the full court opinions, the arbitrators should ask the parties to supply copies, and if necessary, the arbitrators may look up the cited authorities themselves. Arbitrators generally should review only those materials presented by the parties to the arbitrator.

In those limited instances where an arbitrator believes that independent research is appropriate, as described above, the arbitrator should disclose the nature of that research to the parties. By doing so, the arbitrator makes the parties aware of the matters being considered by the arbitrator and the parties may respond accordingly.

The Code of Ethics requires that arbitrators keep confidential all matters relating to the arbitration proceedings and decision. However, the Code of Ethics also states that "an arbitrator may obtain help from an associate, a research assistant or other persons in connection with reaching his or her decision if the arbitrator informs the parties of the use of such assistance and such persons agree to be bound by the provisions of this Canon."

If the arbitrator has definite ideas about how a case should proceed, he or she should bring these thoughts to the attention of the staff. For example, a member of a panel may be quite familiar with an area of controversy and request specific documentation from the parties through the staff.

The arbitrators should not directly communicate with the parties or permit the parties to directly communicate with them. At least twenty (20) calendar days prior to the first scheduled hearing date, all parties are to serve on each other copies of documents in their possession that they intend to present at the hearing and are to identify witnesses they intend to call. However, parties need not serve copies of documents or reveal identities of witnesses, which are used for cross examination or rebuttal purposes. At a party’s request, arbitrators may exclude from the hearing any documents not exchanged or witnesses not identified.

The parties, by agreement, or the arbitrators may shorten or lengthen the prehearing exchange deadlines.

Upon a party’s request to exclude documents not exchanged or identified, or witnesses not identified, arbitrators should be guided by concepts of fairness in determining whether to exclude the evidence offered or the witness presented or identified. If the documents, which were not exchanged or identified in accordance with the twenty (20)-day rule, are either voluminous or significant, the arbitrators may adjourn the hearing to afford the disadvantaged party a fair opportunity to examine and evaluate the documents. Arbitrators should consider assessing the noncomplying party with costs and expenses that arose because of the postponement.