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Resolution of Discovery Disputes in Arbitration.

Posted on 16/09/2016 · Posted in Arbitration

Arbitration is a form of dispute resolution in which disputing parties select an independent third party arbitrator to listen to and evaluate the evidence presented by each party and make a final decision about the appropriate resolution. The arbitration process consists of the following key stages:

  1. Request for and submission of dispute to arbitration
  2. Arbitrator selection
  3. Scheduling
  4. Preliminary hearings
  5. Discovery
  6. Trial / arbitration preparation
  7. Final hearing and award

What is a Discovery?

The ‘discovery’ phase in an arbitration is the pre-trial stage during which the disputing parties identify and pull together all of the relevant information, documentation and witnesses they will require to support their case at the final hearing. The discovery process also allows the parties to obtain facts and information from the other party to help support their own case and to prepare for the final hearing.

During the ‘discovery’ phase of arbitration proceedings, the arbitrator will examine the unique facts and circumstances of the case, collecting relevant documents and information and looking at any requests for further documentation.

Discovery Disputes

In recent years the size and scope of arbitration cases has dramatically increased, meaning the discovery stage can be a lengthy one if substantial document requests are made. It’s important to keep the process as efficient as possible given one of the merits of arbitration versus formal court proceedings is its time and cost effectiveness.

Coming together is a beginning; keeping together is progress; working together is success”
Henry Ford

However, in hotly contested arbitrations it is not uncommon for disputes to arise and often as early as the discovery phase, as parties challenge documentation or object to document requests from the other party. Disputes at this stage can inevitably hold up proceedings and the arbitrator might therefore establish a set of ground rules that helps resolve these discovery disputes so that the arbitration does not get delayed. The arbitrator may do this by ensuring that any potential disputes that arise are discussed up front before the discovery kicks off, and establishing guidelines and timings for document requests and relating objections. Some arbitrators may also require a meet-and-confer effort by counsel which may allow disputes to be settled up front, or in other cases the arbitrator may decide to resolve disputes quickly via email or teleconference. In each case, the arbitrator’s personal experience and the specifics of the case and discovery dispute will dictate what approach he or she takes to resolution.

It is important that arbitrators and disputing parties collaborate to ensure the discovery process is an efficient one that allows the arbitration proceedings to go ahead as quickly and effectively as possible, but also ensuring the process remains a fair one. If participants remain on the same page, then effective and efficient arbitration discovery is a realistic goal in modern arbitration proceedings.

Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.