WHAT TO EXPECT FROM ME AND FROM YOU

I AM YOUR ARBITRATOR.....

Charles W. Herf is a retired partner from the Phoenix office of the national firm of Quarles & Brady, LLP.  While in private practice he was a partner in the firm's Labor & Employment group for over 25 years.  He was admitted to the Bar initially in 1968 and remains a member of the AZ bar.  Throughout his practice he represented public and private employers in all aspects of employment disputes and various securities institutions.  He has served as an arbitrator for the American Arbitration Assocition, Financial Industries Neutral Regulatory Association, NYSE, NASD, Superior Court of the State of AZ, U.S. District Court of AZ and for private parties.  If you wish to see his bio  please go to Quarles.com and look under attorneys.  He may be contacted at 480.991.6272 (h), 602.397.4006 (c) or Lawdoc.herf @gmail.com.


I have been a trial lawyer specializing in labor and employment as well as securities ltigation for over 45 years.  Over the last 35 years, serviice as an arbitrator, mediator and pro tem judge for the Arizona Superior Court has become an increasingly important and significant part of my practice.  My experience as a lawyer, mediator and arbitrator has taught me much, most especially that:

  • parties to a dispute choose arbitration for the advantages it has over traditional civil litigation, particularly (1) an early opportunity to present their evidence and get a resolution and (2) a process that minimizes the most expensive phase of litigation -- discovery.


  • parties to a dispute, and their lawyers, need and want information about how the decision-maker manages cases and conducts the dispute resolution process, and


  • the decision -maker is best able to carry out his or her role -- and the parties and their counsel are most comfortable with the fundamental fairness and integrity of the process -- if the decision-maker manages the process fairly and efficiently.

I want to summarize my arbitration philosophy which reflects my management of cases so that the parties to cases in which I serve as arbitrator are aware of how I conduct arbitrations.
While I am flexible and will tailor both pre-hearng and hearng procedures to suit the needs of a partcular case, these policies give the parties an idea of my arbitration case managaement.  


They are designed to ensure that parties obtain the benefits they have bargained for by choosing arbitration over traditional litigation:  confidentiality; reduced legal expenses; an early opportunity to present evidence; an expeditious decision; finality.  If the parties arbitration agreement (or court or other rules) specifies particular rules or addresses one or more of the subjects discussed below, those rules or their agreement govern to the extent they are inconsistent with my policies.  I encourage the lawyers in a case to share this document with their clients. 

ARBITRATION

The purpose of arbitration is to resolve a dispute privately using the services of an independent, neutral decision-maker - the Arbitrator.  Although the arbitrator is not a judge, he or she functions in much the same manner as does a judge and determines whether or not a claim should be allowed and, if so, in what amount or under what circumstances.  The arbitrator's awsrd is often final and binding subject to appel under the FAA or State statutes on certain limited grounds.  An arbitration award may generally be filed in court and, once approved by the court, becomes a judgment with the same force and effect as a judgment which results from a trial.


Although the arbitration process is similar to a court proceeding -- and the Hearing similar to a trial -- there are several key differences.  First, the time from case filing to entry of the arbitration award is generally faster than in court proceedings.  Second, the sort of expensive, broad, wide-ranging "discovery" common in court proceedings is generally not available unless the parties agree or the arbitrator permits it.  Third, the rules of evidence that govern court trials are generally not followed in arbitration hearings: evidence which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs will ordinarily be received, regardless of its admissibility in a court proceeding.


My job as arbitrator is to hear the evidence you present, both by way of testimony and by way of documents and to decide the case.  The "award" after hearing your case is my decision.

DIRECT CONTACTS WITH ME

 

Following confirmation of my appointment as arbitrator, direct contacts with me concerning any matter involved in your arbitration are not permitted, other than in a hearing or conference call at which all counsel and/or parties are present.  If all parties are represented by counsel, you may correspond directly with me (or provide me directly with a copy of briefs and other case papers) if all other participants in the case are copied.  However, in the absence of a contrary provision in my first prehearing order, all contact should be all counsel and the Arbitrator, or if a AAA matter, with the Case Manager assigned to your case; he or she functions, in essence as my "bailiff" or "clerk" and will contact me.

DISCLOSURES

The ntegrity of the arbitration process depends in large part on the faith of the parties and counsel in the impartiality of the arbitrator.  I take my disclosure obligations seriously (see Revised Code of Ethics for Arbitrators in Commercial Disputes (AAA/ABA, March 1, 2004) and the Revised Uniform Arbitration Act, Section 12, codified in Washington as RCW 7.04A.120) and make a good faith effort to make all appropriate disclosures in a timely fashion.  Counsel are asked to share my disclosures with their client representatives and to bring to the attention of the Case Manager any concerns they might have with any disclosures I make. 

LIST OF RELATED ENTITIES & CONFLICT LISTS

 If this is an AAA administered dispute, to the extent you have not provided the AAA with a list of related entities and key potential witnesses, lease do so as soon as possible.  These lists are for my use only, to determine whether there are any potentital conflicts of interest or appearance of fairness issues.  Your lists should be seasonably supplemented as necessary.  It is important that I know, at the earliest possible time, whether any additional disclosures need to be made. 

PRE-HEARING CONFERENCES

In general, a telephone (or iin-person) conference to discuss some variation of these policies, or to bring some special circumstance to my attention, may be arranged at any time.  Simply call (or email) your Case Manager, who will contact me.  You may assume that I will have read any papers submitted in connection with such a conference and be prepared to address the issues you have identified.   I expect proper decorum to be followed in all pre-hearing conferences:  address yourself to me or to the Arbitration Panel, not to your opposition; avoid personalizing your comments,; one person speaks at a time and there are to be no interruptions.


If the parties desire a conference with counsel or the parties (normally by telephone conference call) mid-way through the case to make certain that the case is on-track for the Hearing may be scheduled.  I generally schedule a final pre-hearing conference a couple of weeks before the Hearing to discuss final arrangements for the Hearing.  Dates and times for these conferences will be set at our initial preliminary hearing.