At the Hearing

The Uniform Code gives the Director the power to appoint the Chair, unless all parties agree upon a Chair. The Chair holds a key position in the conduct of the arbitration and directs the proceeding. An arbitrator who does not desire to perform this function should decline the appointment.

 

At the beginning of the hearing, the arbitrators, the parties, and witnesses will be sworn. The panel should ensure that a verbatim record of the proceeding is kept.

 

The Chair will be provided by the staff with a written opening statement that should be read into the record after the panel has been sworn. This statement acknowledges that the arbitrators have read all the pleadings submitted by the parties and outlines the manner in which the hearing should proceed. Among the items mentioned is the order in which the parties may make opening and closing statements and present evidence. At the conclusion of the hearing, the parties are instructed to leave together and are advised that they will be informed of the arbitrators' decision in writing. This procedure is a guide that should be used by the Chair. However, it may be modified to accommodate special circumstances that arise during a particular hearing.

 

The Chair should remember that all arbitrators share an equal status. The Chair should neither make, nor appear to make, unilateral rulings on key issues. It is incumbent on the other arbitrators to call any occurrence of this nature to the Chair's attention. (See Executive Sessions.)

 

Each arbitrator should carefully consider requests made by the parties. Arbitrators should be guided by the concepts of fairness in determining what evidence or testimony should be admitted. When in doubt, rulings are more appropriately made on the side of allowing rather than restricting evidence. The panel is not bound by the Rules of Evidence. (See Admissibility of Evidence.) Each case must be judged solely on the written and testimonial evidence. Each arbitrator has a right to question witnesses. While it is certainly proper for an arbitrator to ask questions, every effort should be made to avoid taking over a hearing or becoming an advocate. Parties and their attorneys should be permitted to try their own cases. Generally, arbitrators should refrain from questioning a witness until both parties have finished their examination.

 

Arbitrators must always conduct the entire hearing in a neutral fashion. They should avoid comments or body language that indicate a preference for either side. Care should be exercised, particularly when questioning a witness, so that the arbitrator does not indicate disbelief. Grimaces, frowns, or hand signals should all be avoided. Casual conversations with parties or counsel should be held to a minimum. The arbitrators should strive to conduct themselves appropriately. All parties should be given a fair opportunity to present their case.

 

During a hearing, a party may object to an arbitrator's continued participation. The objection may arise after a new disclosure is made by an arbitrator or if a party does not feel it is receiving a fair hearing. When considering such an objection the arbitrator should refer to the guidance under the Code of Ethics for Arbitrators. (See Appendix A, Code of Ethics for Arbitrators in Commercial Disputes, Canon II, Section [E] [1] and [2].)

 

Occasionally, a counsel may require tactful handling. Some attorneys refuse or are unable to adapt to the informality of the arbitration process and believe that they must employ legal technicalities that are routinely used in court. If the case is to move expeditiously, the Chair may be required to interrupt an attorney attempting such formalities, explain the proper procedure, and remind counsel that he or she is in an arbitration proceeding. If the conduct of the attorney continues, the Chair should become more forceful.

 

Some counsel become attuned to the system and try to use the informality to their advantage. Very often, their questions are too leading and, at times, the attorney actually testifies. Some attorneys use the informality to respond to arguments or to make gratuitous statements. In these situations, the Chair should intervene and bring the offending practice to a halt even if the opposing party does not object.

 

Some attorneys think that the more often a statement is made, the truer it becomes. The Chair, however, should discourage needless repetition.

 

The Chair should maintain decorum at all times. Shouting, profanity, or gratuitous remarks should be stopped. If a hearing becomes heated, the Chair should intervene or, if necessary, call a recess.

 

Sometimes, a witness will become nervous or anxious. In such an instance, the Chair might attempt to calm the witness.