The first conference and the schedule

Why this matters

The first conference produces the schedule, and the schedule becomes an order. Changing it later takes effort and sometimes a good reason. If you arrive prepared, you can shape dates that fit your case and your life. After that, your job is to follow the orders exactly.

This is general information, not legal advice.

The preliminary hearing

Soon after the arbitrator is appointed, the administrator sets a call or video conference. The AAA calls it the preliminary hearing. Rule R-20 describes it this way:

"During the preliminary hearing, the parties and the arbitrator shall discuss the future conduct of the case, including clarification of issues and claims, scheduling of the hearings, prehearing exchange of information..."

JAMS calls it a preliminary conference. Rule 16 says one "shall be conducted" at the request of any party or at the direction of the arbitrator. It covers exchange of information, the discovery schedule, motions, and hearing dates.

After the conference, the arbitrator issues written orders. Those orders, not what anyone said on the call, are your rulebook.

Prepare before the call

1. Re-read the rules sections on the preliminary hearing, discovery, and motions.
2. Draft a proposed schedule that fits your work life. Panels often adopt an agreed schedule. Offer one.
3. List the topics you want to cover, such as the document exchange, depositions, motions, and hearing logistics.
4. Check your calendar around work peaks. A new job, shift work, or a second job may collide with deadlines. Ask for dates that work. A missed deadline because of work is rarely accepted as an excuse.
5. Decide what you will say about your plans, and say it carefully. Anything you say about your plans can be quoted later.

Ask for dates the default schedule may skip

• A date for motions to compel.
• A date by which all defenses must be stated.
• A cutoff to supplement discovery responses.
• A firm date for witness lists.
• A date for exchanging exhibits and a stipulation of uncontested facts.

Without these dates, the other side can delay, add witnesses late, or keep revising answers.

Sequence documents before depositions

If the deposition cutoff comes before document discovery ends, you may have to question witnesses without key documents. You usually get one chance to depose a person. Ask for depositions to follow substantial document production.

Put deposition protections in the order

Ask for terms in writing, such as a time ceiling, fixed start and stop times, scheduled breaks, exhibits shared the day before, and an agreed scope. Little case law covers who controls breaks or what happens when an examiner stalls, so a term in the order is your best protection. Chapter 8 covers depositions.

Ask about the practical rules

• How are exhibits numbered?
• Are joint exhibits encouraged?
• Is the hearing remote or in person?
• When is the witness list due?
• Will there be an early exchange of core documents? The JAMS minimum standards and the AAA Due Process Protocol both support early access to core information (Chapter 5 quotes them). Ask the arbitrator to order an early exchange that names the decision-makers, the witnesses with knowledge, and the core documents.

Find out which law applies

Orders usually say what law governs the claims and how procedure works. Court procedure rules are often persuasive and not binding. You need to know whether to cite court rules and which ones.

Check your state

• Ask the panel which law governs, and whether state court procedure is only a guide. Then research the courts of the state where the arbitration sits first, and federal courts second.
• New York example. In a New York arbitration, the CPLR and the Uniform Rules for the courts may be persuasive and not binding. Check the order for what it says.

Read each order like a contract

Every order has the same parts. Look for them.

• Deadlines. Who must do what, and by when.
• Page limits. Letters and briefs often have a cap, such as a few pages. If the order does not say whether exhibits count, assume the cap covers the letter itself and ask. If replies are not mentioned, ask before filing one.
• Filing mechanics. How to send documents, whether to copy the administrator, what format, what subject line, and what time zone.
• Dispute procedure. How to raise disputes, such as by short letter, and when.
• Conferral requirements. Whether you must talk with the other side first.

Conferral means a conversation

Some orders require the parties to confer before raising a dispute. An order that says "meet and confer" may mean a real conversation, by phone or video, and not just an exchange of emails. Note what your order requires. Chapter 9 gives the steps for a conferral that counts and the recap email that proves it.

Motions

The first order usually says how motions are raised, such as by short letter. Dispositive motions, which ask the arbitrator to decide all or part of the case without a hearing, face a high bar. Under AAA Rule R-32 and JAMS Rule 18 the arbitrator allows one only if it is likely to succeed and to dispose of or narrow the issues. Chapter 9 covers this in detail. If your agreement or order adopts a different standard, follow it.

The hearing format

Under AAA Rule R-23, the hearing is virtual unless the parties agree otherwise or the arbitrator orders it in person on a party's application. If you want an in-person hearing, raise it at this first conference and say why. Chapter 14 covers hearing preparation.

Keep a deadline calendar

Missing a date is the easiest way to hurt your case. Use one master list and update it after every order.

• Keep a single dated list of all deadlines, extensions, and who agreed to what.
• Mark which order each date comes from. Later orders often replace earlier dates.
• Count backward from the hearing date for every task.
• Set reminders a week before each date and the day before.
• After each order, re-read it from the top. Do not rely on memory.

Always check the latest order

When you open the file to work, check the most recent order first. A date in your notes may have been replaced. Working from an outdated schedule is how people miss cutoffs.

Get extensions through the administrator

If you need more time, ask early and in writing. Confirm any extension in writing from the administrator or the arbitrator, and calendar it at once. A personal agreement with opposing counsel may not bind the panel.

Checklist

• Proposed schedule drafted around your work life.
• Extra dates requested (compel, defenses, supplements, witnesses).
• Document production sequenced before depositions.
• Deposition protections requested.
• Governing law and procedure confirmed.
• Page limits and conferral rules noted.
• Master deadline calendar built and checked against the latest order.

Next: Chapter 5, Discovery basics.

Sources

• AAA Employment Arbitration Rules and Mediation Procedures (PDF)
• AAA Employment/Workplace landing page
• JAMS Employment Arbitration Rules
• JAMS Employment Minimum Standards of Procedural Fairness
• AAA Employment Due Process Protocol (PDF)