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Procedural Deviations

Monday, June 15, 2026 4:12 PM | Anonymous

How to avoid protocol deviations in my center?

How flexible should tribunals be when parties mutually request procedural deviations? At what point does accommodating party autonomy begin to undermine consistency, efficiency, or the perceived integrity of the arbitration process?

What are your thoughts?

Comments

  • Tuesday, June 16, 2026 11:03 AM | Brian Oblow
    I typically see this with requests for depositions and other discovery that is not specifically provided for in the rules. If the parties are in agreement, I typically allow them to deviate as long as it does not significantly impact the underlying purpose of arbitration being a more streamlines and efficient conflict resolution process. For example, each side taking a couple depositions may be reasonable, but wanting to take 10 may not be. It also depends on the size and complexity of the case. There is likely going to be more flexibility given in a multi-million-dollar, multi-party case, than in a smaller simple two-party dispute.
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  • Tuesday, June 16, 2026 11:05 AM | Robert L. Arrington
    This should be addressed on a case-by-case basis. I am inclined to give the parties their way if they both request dispositive motions, but likely to put my foot down if they make unreasonable discovery demands.
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  • Tuesday, June 16, 2026 11:06 AM | Robert A. Creo
    Arbitrators should defer to the parties unless the proposed procedural "deviation" affects due process rights or violates the Code of Professional Responsibility. For example, if both e parties want to bifurcate and you are unable to persuade themotherwise, then just do it. The NAA Dec. 2023 survey resonses indicate there is a small minority of arbitrators that deny this joint motion. (Avaialbe under resources tab naarb.org).
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  • Tuesday, June 16, 2026 11:11 AM | Steven Skulnik
    This happens all the time. We persuade counsel unfamiliar with arbitration to embrace the efficiency that arbitration allows. This happened last week where general counsel appeared at the preliminary hearing. It was quite difficult for outside counsel to push back and they didn't.
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  • Tuesday, June 16, 2026 11:28 AM | Tracy Allen
    Thanks for the question. It is no secret that in the US, arbitration is the mutant child of traditional litigation.
    As an arbitrator I struggle with allowing a lot of leeway to attorneys to manage their cases as they deem necessary to avoid malpractice and to build their proper claims/defenses, and the traditional philosophy of arbitration expediency. One perspective is that, if the attorneys are cooperating, they should be able to do what they think they need to do. In general, if there is consensus about process, discovery, mechanics of arbitration on their end, I don’t impede their work.
    I tend to hold “Feet to fire” regarding deadlines for hearings and the overall timeline for a case to get through to Award. Anything before that is more or less up to counsel, although I prefer the historical approaches to streamlined discovery. It is always a topic in the IPHC and I often make suggestions on ways to make discovery and trial preparation more efficient- e.g. partial discovery in the first stage to see what surfaces, limited questioning in depos, seeking consensus on scope and terms of cyber discovery, requiring a conference call with the Chair before filing any discovery motions to compel, etc.
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  • Tuesday, June 16, 2026 12:39 PM | Igor Ellyn
    The parties should be given leeway if they agree or if there is a good reason, but if delays in documentary production, motions or other matters will require postponement of the hearing date, I would ask for more pressing reasons why the delay should be granted.
    Deviations to discuss settlement create a more difficult problem. If the parties wish to consensually pause the schedule to explore settlement possibilities, it seems to me that the arbitrator has not option but to agree unless the delay is unreasonable. If the parties ask for such a delay, the arbitrator is also wise to make sure tht the deposits are enough to cover the arbitral services done to date as it may be more difficult to collect from some parties if they settle.
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  • Tuesday, June 16, 2026 12:52 PM | Marc Elliott
    Accommodations should be evaluated in the context of the specific case but always with the goal of ensuring that the arbitration is more economical, efficient and expeditious that if the parties were in litigation. What this means will vary from case to case but an arbitrator should never lose sight of the goal of making arbitration faster and cheaper than litigation.
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  • Tuesday, June 16, 2026 1:43 PM | Stephen Sorensen
    My experience says that if the parties are in agreement for subpoenas or dispositive motions then I will permit that but put timelines on the request for subpoenas or the dispositive motions
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  • Tuesday, June 16, 2026 1:50 PM | John Allen Chalk, Sr.
    I see more "stipulations" by parties over the last five years, especially in detailed and complex fact and legal circumstances. Many of the procedural deviations requested are time-extension prompted by arbitration-savvy litigators. Some are discovery-dispute-based but often regarding issues that experienced lawyers and parties should resolve without assistance. Some procedural deviations are attempts at legal theory elimination without having to file dispositive motions. After an abnormal number of procedural deviation requests, telephone or online hearings and briefings begin to discourage advocate attempts to shape the arbitration process.
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  • Tuesday, June 16, 2026 2:05 PM | Stanley Santire
    the arbitration belongs to the parties and is supervised by us. Of course we have our obligation to efficiency, particularly as to time. i believe in allowing the parties as much leeway as possible while placing while maintaining the fundamental boundaries that distinguish arbitration from litigation. That said, in my experience the biggest issue here is depositions. Bottom line, I defer to this while putting a limit on how many and how long.
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  • Tuesday, June 16, 2026 3:18 PM | Thomas Levak
    I always allow whatever is mutually agreed to.
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  • Wednesday, June 17, 2026 9:05 AM | Edwin H. Stern
    Like most on this chain, I permit modifications from Rule requirements when the parties agree or there is consent unless prohibited by the Rules. Moreover, as Rules are designed to promote fairness as well as uniformity and clarity in the process, I also permit deviations when it appears fair to do so and there is no prohibition and no prejudice to an adverse party.
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  • Wednesday, June 17, 2026 10:40 AM | Michael Starr
    For me, it is not "yes" or "no". Mindful for our ethical duty as arbitrators to promote a fair but also efficient and cost-effective process, I typically respond to a request for -- for example, more discovery or a prolonged discovery timeline -- with a conference. After hearing the parties' concerns, I suggest an alternative. E.g., instead of 10 depositions, how about each side take two and if, after those, there is a need for more, send me a letter requesting that. The parties almost always agree and, frankly, they have rarely come back asking for more than the scaled back alternative I offered. Generally, in my experience, lawyers want "more" because they fear not having enough -- of whatever, depositions, time for discovery etc. -- and once they know that they know that the arbitrator is prepared to extend "more" if they ask, the fear subsides and they don't ask for more than they actually need.
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    • Wednesday, June 17, 2026 5:31 PM | Gerry Doyle
      In my experience the parties frequently reach a number of procedural agreements before the scheduling conference occurs. Consequently, in my initial conference report and scheduling order I usually include the following statement: "The parties have presented certain agreements which they have reached in preparation for this scheduling call. Any such agreements which are not inconsistent with orders issued in this arbitration or with the Rules of the Association are encouraged."
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