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Postponement Requests

Friday, March 07, 2025 2:45 PM | Anonymous

How should an arbitrator approach postponement requests? How should these matters be decided? Should the arbitrator paper her/his decision in this regard? How so? If the parties mutually agree on repeated postponements, how long should the arbitrator tolerate such requests?

What are your thoughts?

Comments

  • Saturday, March 08, 2025 9:40 AM | John M Delehanty
    I know I am in the minority but I do not think that parties should have an unrestricted right to postpone arbitration proceedings. Many of my fellow arbitrators tell me that we have no choice but to agree to postponements because the arbitration is the parties' proceeding, not ours. I disagree. We have an obligation to maintain arbitration as an expeditious and cost effective vehicle. Postponements have the opposite effect. They lead to unnecessary delay and cost, causing counsel and the arbitrators to revisit the case every time it is postponed. AAA and other arbitral institutions should strongly discourage it.
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    • Saturday, March 08, 2025 10:15 AM | George Lobman
      If the rational for a delay seems reasonable, if it has value to settle, if it is the only option to allow the parties to be working together for a hopeful outcome I agree to the postponement. If I believe it is not real or serious or simply a ploy to push a decision out into the future I deny. Sometimes it’s easy to see and sometimes they fake you out! But as an Arbitrator you must stay in control and not lose control.
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      • Saturday, March 08, 2025 10:27 AM | heather shore
        I agree with George's approach. The goal is for the parties to reach a resolution; that's always in their best interest. So if the intent of the stay is to try to settle, and the parties seem genuinely interested in doing so, I agree. Also, if there is a serious health issue (unexpected) or other unexpected events, I would allow it. Otherwise, keeping the pressure on can also be effective to get the parties to the table to talk.
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    • Saturday, March 08, 2025 10:50 AM | Anonymous
      At the initial conference I emphasize that the hearing date the parties agreed on will not be adjourned absent good cause. I find that when attorneys believe that the hearing date is real, they act accordingly.
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    • Saturday, March 08, 2025 6:41 PM | Mark Alcott
      Two conflicting principles are at play here. On the one hand, it is the parties’ process. Accordingly, if they agree on a postponement, I am inclined to grant it, as long as it is not unduly lengthy or simply one of many. (If there is opposition, I am strongly inclined to deny it, unless there are compelling circumstances warranting it.) On the other hand, the arbitrator has an institutional obligation to preserve the hallmarks of the process : efficiency, brevity, and low cost. That might require denying or limiting a request even when both sides agree. At the end of the day, on this matter, like all other matters, the arbitrator must use his/her discretion, wisdom and experience to rule as warranted by the specifics of case.
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  • Saturday, March 08, 2025 9:53 AM | Mark Kantor
    First, if the postponement request is made mutually by the parties, then the request should be honored except in unusual circumstances. The convenience of the arbitrators should not play a role in deciding whether to postpone, but arbitrator availability should play a central role in deciding the new date(s).

    Second, if the request is not mutual, then the arbitrators should document their decision in an order with reasons. If the award is likely to end up before a court, then the postponement decision may become part of an effort to vacate an adverse award. Write for your likely audiences.
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    • Saturday, March 08, 2025 10:16 AM | Raoul Drapeau
      I think that Mark has it right. If the parties agree on a postponement, then the arbitrators should go along - at least once. More than that begins to impinge on the benefit of arbitration of providing a quicker solution than a court litigation. But if the parties don't agree then I would want to hear from each of them as to their reasons, before deciding to grant a postponement. Again same reason as before. Postponements disturb the arbitration process.
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  • Saturday, March 08, 2025 9:56 AM | GARY W JAVORE
    At some point, I require a hearing with the parties present to be certain they are in agreement.
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  • Saturday, March 08, 2025 10:03 AM | Jim Purcell
    It depends on the reason for the request. Even if the lawyers agree on the request, I always ask why. Health or other family issues are good reasons, of course. But if it appears that it's because the lawyers haven't finished their tasks in accordance with the Scheduling Order, then I might grant one such request but then refuse others. We have an obligation to the process to be speedier than court litigation.
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  • Saturday, March 08, 2025 10:22 AM | P.B. Lynn Walker Coffey
    I approach requests for postponement in the same manner as other requests to modify the scheduling order, for “good cause” and considering whether granting the postponement is in the interest of efficiency, expediency, and in the best interests of the parties. If the parties are legitimately trying to negotiate a settlement or striving to narrow the issues that need to be resolved in the case, a postponement is generally in order. I have also granted lengthy postponements where both parties request them because there is a pending court case that will resolve or at least narrow the issues in dispute.

    Repeated requests for postponement are more common when both parties are represented by counsel (rather than when there is a pro se claimant in a consumer case.) The same criteria apply for granting each request, albeit with perhaps more stringent scrutiny of whether the continued delay is in the best interest of the parties and the arbitration process.
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    • Saturday, March 08, 2025 12:01 PM | skip short
      the comments generally are similar and reasonable. I would agree with how Lynn has expressed it.
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  • Saturday, March 08, 2025 10:24 AM | Bob Huber
    When I set a hearing date, I always also set a back-up date that is about a month or six weeks after the scheduled date. I will usually grant one agreed request for a continuance and use the back-up date as the new hearing date, which minimizes the length of the delay caused by the continuance.
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    • Monday, March 10, 2025 5:41 PM | Allan Marain
      That is a great idea!
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  • Saturday, March 08, 2025 10:25 AM | Jeffrey Pardo (jjp@pardo-adr.com)
    In the Scheduling Order, I document counsel's agreement that the deadlines are fixed absent a showing of good cause. If counsel requests a postponement and it will not affect the final hearing dates, I look for "simple" good cause, e.g., overwork, complications, vacations, etc. Multiple requests or those that will affect the final hearing date require "serious" good cause, e.g., death, disease, hospitalization. I always document the reason. I also take into account whether the request was made at the last minute or in advance. Opposing counsel's consent supports but does not control the decision.
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  • Saturday, March 08, 2025 10:33 AM | Anon
    I have never refused to let the parties stipulate to anything. I imagine that could happen. In cases with a lot of postponements I usually say something like, "Tis is getting a little absurd. Can we agree that at some point no more requests will be granted?" Even though I probably would grant a stipulation like that it has always seemed to push the case forward to talk openly about it.
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  • Saturday, March 08, 2025 10:39 AM | Tuneen Chisolm, Esq., M.S.Ch.E.
    I agree the answer depends on the reason for the request, whether it is a joint request, and how many times the request previously has been granted, and that it also requires considering expediency of process. In most instances, the request is to postpone the evidentiary hearing because the parties are attempting to settle. I generally grant those requests. More recently, I am finding it helpful to set a date for a status report and to hold a status conference if the parties report the case has not settled. After repeated requests, I may also set a firm date for pre-hearing filings instead of keeping that filing date dependent upon the hearing date. The deadlines help move the parties along in their efforts to settle. I also emphasize from the outset that none of the dates I set are vacated merely by party agreement.
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    • Saturday, March 08, 2025 12:05 PM | Hon. Tiffany Williams Brewer
      I agree with Tuneen’s approach and I definitely try to provide a balance of flexibility to agreed upon initial requests and maintaining the expediency and efficiency of the spirit of arbitration proceedings.
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  • Saturday, March 08, 2025 11:16 AM | Laura A. Kaster
    In the scheduling order, I typically provide that the parties can agree to postponements of any scheduled deadline if it does not impact the hearing date. I emphasize the difficulty of convening all the arbitrators, counsel, and parties at a time other than that agreed to at the outset. Otherwise, I agree with many of these comments.
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  • Saturday, March 08, 2025 11:26 AM | Dennis Estis
    I think it really depends upon how busy the individual arbitrator or mediator is. Since I am constantly working on different matters, I have no problem granting a postponement regardless of how many.
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  • Saturday, March 08, 2025 11:28 AM | Alan Levy
    I will grant a postponement upon good cause shown with an order stating the reason (i.e. health, true settlement progress, etc.). However, I believe that an arbitrator must keep the proceeding on track and not grant continual postponements that unnecessarily delay disposition.
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  • Saturday, March 08, 2025 12:03 PM | Brian Mooney
    I believe that the arbitrator should always remember that they sit as an arbitrator because the Parties, via contract, agreed to resolve their disputes outside of the civil court system. The Parties had a “meeting of the minds” on this issue. Thus, even if there are two or three joint requests for postponement, my sense is that the arbitrator should generally defer to the Parties in this regard. A problem can arise, however, when the number of requests becomes unreasonable. If this happens the Arbitrator has a number of options available to keep the arbitration process as efficient, cost effective and equitable as possible. Some of those options include the arbitrator’s ability to insist on scheduling status conferences to keep things on track or set specific deadlines with real consequences. Ultimately, the arbitrator can always withdraw from the process, but this would only be merited in extreme circumstances.
    The more difficult situation is when one Party is moving for the postponement(s) and their opposition is resisting. This is where the arbitrator needs to balance the goal of being efficient and cost-effective with providing a process that is fair and equitable. In doing so, the arbitrator will need to determine and analyze the history of such requests, the reason for each request and whether the situation can be resolved short of granting a postponement,
    Regardless of the number of postponement requests, the reasons for them and even they are jointly requested, I believe it is best for the arbitrator to memorialize all decisions to grant such requests, in an order that identifies who is making the request and why was granted (or not granted).
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  • Saturday, March 08, 2025 12:17 PM | Stanley Chinitz
    After hearing the reason for a postponement I generally grant them. If both parties request the adjournment the matter frequently settles.
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    • Saturday, March 08, 2025 1:32 PM | Murry Cohen
      I never refuse a continuance requested by both sides. It is their case and their decision. Arbitration is a matter of contract, the (usually) agreed scheduling order is part of that contract, and their joint decision to postpone repeatedly is also part of that contract. I never consult the parties; the lawyers are the parties because they are the parties' agents. The fact that speed and cost goals may not be met is not my business. It is theirs, and if they want repeated postponements, that means to me that they are unconcerned with speed and cost efficiency but still want the privacy, finality, and opportunity to select the decision maker. If they're satisfied with obtaining, those goals of arbitration, why should I force them to strive for speed and cost objectives that are obviously unimportant to them?
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  • Saturday, March 08, 2025 1:24 PM | Nasri H Barakat
    Postponements are not uncommon in arbitration. The most common request is for the Panel not to take any action while the parties attempt a settlement. In this case the request is a joint request and the Panel has no reason not to grant the postponement. The request may also be submitted by one party while perhaps replacing counsel or a problem with locating a witness or for a host of other reasons. The arbitrator or the Panel have to look at each request as submitted and decide. Granting several requests for postponements that have the objective of unnecessarily delaying the proceeding should be avoided in order to preserve the process. In my view, generally the parties and their attorneys are reasonable and realize that requesting postponements without a valid reason would not be beneficial to them in the long run and may cause the arbitrator or panel to draw an adverse inference from these requests.
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  • Saturday, March 08, 2025 2:26 PM | Doug Bonney
    AAA Employment Rule 24, Postponements, provides as follows: “The arbitrator: (1) may
    postpone any hearing upon the request of a party for good cause shown; (2) must postpone any
    hearing upon the mutual agreement of the parties; and (3) may postpone any hearing on his or
    her own initiative.” Thus, in employment cases, I must grant a request if it is joint. In the rare case where the parties seem to be playing games, this can be problematic. This is not a problem in cases administered under the Commercial or Labor rules, which include only a good cause requirement.
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  • Saturday, March 08, 2025 4:55 PM | Richard McNamara
    If the parties agree to continue a case, I am hard pressed to insist they go forward. During my years on the Superior Court I would usually, but not always agree to an assented continuance. For a court, there is a public concern; the court is an expensive facility which many litigants want to use, and there is a public interest in freeing up the venue. Arbitration involves only the parties; if there is assent to a continuance, they have determined the cost is worth it to their clients. Thus, absent hardship to the arbitrator, I always an assented continuance. The parties always know their case and their clients needs better than the arbitrator.
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  • Saturday, March 08, 2025 5:55 PM | Rebecca Bowman, Esq., P.E.
    I will accept two brief delays by mutual consent and with explanation. I will tolerate one brief delay for a proven emergency. In both cases, I warn that, beyond that point, I will assess sanctions, typically paying for my time for the additional conference call (or whatever the result is). If it's fast track I warn that I will assess a sanction of paying the other party's attorney's fees for the additional conference call (or whatever the result is). I also warn that once we get to hearing time, I will not entertain a postponement unless for something truly catastrophic, especially if there are 3rd-party or expert witnesses. I establish a firm (sometimes approaching harsh) tone from the outset.
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  • Saturday, March 08, 2025 9:09 PM | Michael Orfield
    From the PH to filing of the ruling, there is one captain of this ship... the Arbitrator. The passengers can be accommodated and their trip facilitated, but it us the Arbitrator who ensures fairness, economy and efficiency. All postponements are memorialized and new dates established immediately.
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  • Sunday, March 09, 2025 12:21 PM | David Lichter
    I encourage everyone to re-read Doug Bonney’s post as it applies to AAA’s Employment Rules, which MANDATE a postponement upon a joint request. I have been told by case managers in the past that I cannot refuse a joint request under these rules. The Commercial and Healthcare rules don’t have the same mandatory language. With that said, after I have a case in which two continuances have been granted, I will hold a hearing and ask for a client representative to appear to ensure the clients are aware of the multiple postponements.
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  • Sunday, March 09, 2025 3:16 PM | Lisa Renee Pomerantz
    As arbitrators, we should keep in mind that one of the grounds under the FAA for vacating an award is "where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown". That being said, there are many instances in which one of the parties is not complying with scheduling and discovery orders or requesting repeated postponements, and where the postponement requests are opposed by the other side. In such circumstances, I have a status call with the parties where I remind them of my institutional responsibility to provide a fair and expeditious process and discuss with them how we can get the process back on track. I document the results of that discussion in a scheduling order. Even when the parties agree on a postponement, I do remind them that any scheduling change must be approved by the arbitrator, and confirm my agreement to their postponement request in an order.
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  • Sunday, March 09, 2025 3:18 PM | Robert A Shipley
    The circumstances of each case should govern whether it is proper to grant a continuance. Fundamentally, good cause must be demonstrated and in my opinion absent extraordinary circumstances only one continuance should be granted.
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  • Monday, March 10, 2025 5:01 PM | Anonymous
    I use the rule that a first postponement by agreement should be accommodated so long as it is accompanied by a firm date for the next visit. A second request, even by agreement must be accompanied by some showing of cause other than that the parties agree to it. I have found that setting a firm third date where the parties have to appear ready of not usually results in resolution.
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  • Wednesday, March 12, 2025 6:20 PM | Thomas C Watts
    While the process is party driven, it is up to the arbitrator to move the matter along. While I highly discourage postponements after the agreement of the parties to proceed, I need to reaim mindful that the failure to allow a postponement for god cause is grounds for vacature under Section 10 (a)(3)
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