Deliberations

Prior to the close of the hearing, the arbitrators may request that the parties state specifically the relief/damages they are seeking if not made clear by the pleadings. The arbitrators may also request that the parties present specific calculations of the damages to assist them in their deliberations.

 

Immediately after the close of the hearing, the arbitrators usually remain in the hearing room either to begin deliberations or set a date for deliberation. Unlike jurors, the panel members are not restricted from discussing the case among themselves. Generally, arbitrators do not attempt to judge the dispute until all the evidence is received. All arbitrators should take part in the deliberations.

 

Usually the Chair asks one member of the panel to begin discussion of the case, expressing his or her individual views. The Chair should ask the panelists first to discuss liability without mentioning specific damages. The panelists should discuss differences openly. The arbitrators may wish to review the transcript or recording of the hearing and their notes as well as the evidence.

 

Arbitrators should keep in mind that the parties expect to be advised of the final decision within thirty (30) business days after the close of the hearing.

 

The panel may consider breaking the decision into separate awards on each individual claim. Where more than one theory is set forth as a basis for the relief sought, the arbitrators may differ as to these bases for liability. As long as the arbitrators agree on liability, they need not be unanimous on the theory of liability.

 

Arbitrators are not strictly bound by case precedent or statutory law. Rather, they are guided in their analysis by the underlying policies of the law and are given wide latitude in their interpretation of legal concepts. On the other hand, if an arbitrator manifestly disregards the law, an award may be vacated. (See The Arbitrators' Award.)

A. Compensatory/Actual Damages
The recovery of compensatory damages is the primary reason a party brings a claim. An award of compensatory damages may include the party's actual dollar loss and any other damages. Claimants will generally state a figure in the statement of claim of what they consider to be actual damages. Claimants have a duty to prove those damages. All claims for damages should be supported by evidence. The arbitrators may consider the concept of mitigation, where appropriate.

 
B. Punitive Damages
Arbitrators may consider punitive damages as a remedy. Generally, in court proceedings, punitive damages consist of compensation in excess of actual damages and are awarded as a form of punishment against the wrongdoer. If punitive damages are awarded, the arbitrators should clearly specify what portion of the award is intended as punitive damages.

 

C. Injunctive Relief
Parties may request injunctive relief when they are seeking a specific action or relief from a specific action. For example, an introducing firm may request injunctive relief to enjoin a clearing firm from ceasing to clear its trades. The SROs vary in their approach to injunctive relief issues. Arbitrators should consult the procedures of the SRO in which they are serving.

 

D. Interest
Arbitrators have the power to award interest and to determine the proper date from which interest is to accrue. Some state statutes specify legal rates of interest that may be used for guidance when awarding interest.

 

Unless otherwise specified by the arbitrators in the award, all awards shall bear interest from the date of the award: (i) if not paid within thirty (30) days of receipt, (ii) if the award is the subject of a motion to vacate that is denied.

 

E. Attorneys' Fees
Attorneys' fees are frequently requested in arbitration. Arbitrators have the authority to consider awarding attorneys' fees, but the procedure varies from state to state. It is appropriate for the arbitrators to request the parties to brief this issue.

 

F. Forum Fees
Some SROs subsidize the arbitration forums they sponsor. In order to defray part of the costs, the arbitrators are empowered to assess forum fees as set forth in the rules. When a party files a Claim, Counterclaim, Third-Party Claim, or Cross-Claim, that party is required to remit a nonrefundable filing fee in addition to a hearing session deposit based upon the fee schedule in the Uniform Code. The Director may temporarily waive the fee or deposit. The total fee is determined by the number of hearing sessions. The arbitrator(s) may assess in the final award a fee waived by the Director.

 

When it is clear that multiple hearing sessions are required, the arbitrator(s) should consider requiring the parties to deposit interim forum fees for additional hearing sessions that have been held or are scheduled.

 

Forum fees may be assessed for prehearing conferences conducted with the parties and an arbitrator. Should a case settle or withdraw subsequent to the commencement of the first hearing session, including a prehearing conference with an arbitrator, the arbitrator(s) may assess forum fees and costs. The assessment should be based on hearing sessions held or scheduled within eight (8) business days after the sponsoring organization receives notice that the matter has been settled or withdrawn.

 

The arbitrators may also assess an adjournment fee when a party's request for a postponement has been granted, thereby necessitating rescheduling the hearing.

 

For all of these issues, the arbitrator(s) should refer to the schedule of fees.

 

In addition to administrative expenses, the parties may request that the arbitrators direct reimbursement for certain expenses such as:

1. the expenses of a witness,
2. the cost associated with producing documents, and
3. the cost of transcribing the record.
   
   

It is within the panel's discretion to decide which party, if any, shall pay these fees and expenses. The panel may use the same basis as it did in determining compensatory damages.