The COVID-19 pandemic has affected the legal and judicial system in such a way that the majority of state and federal courts have been closed indefinitely. If, or when they reopen, existing cases will be backlogged, and trial dates will continue to be delayed. In addition, the pandemic is also expected to result in thousands or more of new case filings that courts will not be able to accommodate anytime soon.
As one solution to this problem, Pacific ADR and its Panel Members are available to conduct Online Summary Arbitrations. These arbitrations will be conducted entirely online, via Video Conferencing or Teleconference, bypassing the slow-paced court system and in turn, resolving most disputes between 120 and 150 days from start to finish. Provided, however, the parties may agree to a different timeline.
In Online Summary Arbitration, the respective parties submit to a Pacific ADR Arbitrator written claims and responses together with evidence in the form of declarations under oath and documentary evidence. If neither party requests an oral hearing, the Arbitrator will decide the dispute based solely on the parties’ written submissions. Otherwise, the Arbitrator will hear oral argument prior to issuing an Arbitration Award.
The parties shall share equal responsibility for paying the fees that Pacific ADR charges for the arbitration. The Arbitrator will not issue an Arbitration Award until the parties have paid the required fees. The rules that govern Pacific ADR’s Online Summary Arbitrations (OSAR) appear below.
ONLINE SUMMARY ARBITRATION RULES
1. Scope of Rules.
These Online Summary Arbitration Rules (OSAR) apply to confidential binding summary arbitrations that panel members of Pacific ADR conduct in the State of Washington regarding legal disputes under the common or statutory civil law of the State of Washington or the civil law of the United States.
2. Commencement of Arbitration.
A party (a) to a written arbitration agreement or (b) subject to an arbitration clause in a written contract or a court order to arbitrate may begin the arbitration process by submitting a written Claim for Binding Summary Arbitration (Claim) to Pacific ADR. The Claim shall set forth the factual basis for the initiating party’s (Claimant’s) claim(s). The Claim shall not exceed 30 double-spaced pages not including exhibits.
On the same day of Claimant’s submission of its Claim to Pacific ADR, the Claimant shall serve, via email, the party (Respondent) who is the subject of the allegations in the Claim. The Respondent shall submit, via email, its written response (Response) to the Claim to Pacific ADR no later than 21 days after receiving the Claim. The Response may include one or more counterclaims against the Claimant. The Response shall not exceed 30 double-spaced typed pages not including exhibits.
On the same day that the Respondent submits the Response to Pacific ADR, it shall serve the Claimant, via email, with a copy of the Response.
3. Selection of the Arbitrator.
Unless the parties otherwise agree in writing, the Arbitration shall be conducted by a single arbitrator. If the Parties are unable to agree upon selection of an Arbitrator prior to the deadline for filing of the Response, they shall immediately notify Pacific ADR. Pacific ADR will then send to each party, via email, a list of three potential arbitrators and a copy of the CV of each of those three persons.
Within three (3) days of receiving that information, each party shall rank order the three names and submit, via email, to Pacific ADR a copy of the rank ordering. No later than three (3) days after receiving the respective rank orderings, Pacific ADR will select as the Arbitrator the person who has the highest joint rank order and notify, via email, the Parties of that person’s identity.
In addition, the notification will identify three potential dates for a telephonic or video conference Arbitration Hearing on the parties’ respective claims. The earliest of the three dates shall be no sooner than 120 days after the date on which the Claimant submits the Claim. The latest of the three potential dates shall not exceed 150 days from the date on which the Claimant submits the Claim.
Pacific ADR encourages the parties to attempt to agree on a date for a potential hearing as soon as possible after receiving the three potential dates.
4. Scope of Jurisdiction of the Arbitrator.
Unless the parties agree to expand it, the scope of the arbitration will encompass civil disputes that arise in the United States and its territories. The Arbitrator shall have exclusive authority to decide the scope of arbitration jurisdiction, to decide questions of subject matter, territorial and personal jurisdiction, and to award monetary, equitable, or any other form of relief, including but not limited to specific performance.
5. The Arbitration Process.
Within 10 days after filing of the Response, the Arbitrator shall schedule a telephone or video Preliminary Conference with counsel. No later than 21 days after the Respondent serves the Claimant with a copy of the Response, the parties will provide each other with a list of all documents that are material to their respective versions of the merits of the dispute that led to the submission of the Claim. At the same time, the parties will provide to each other and the Arbitrator, via email, a copy of each unprivileged document identified on that list. If, necessary, the Arbitrator will resolve disputes regarding privilege or relevance.
The Parties and their counsel shall at all times use their best efforts to cooperate in all discovery matters including preparation of a joint book of exhibits.
6. Witnesses and Depositions.
The Parties shall identify all fact and expert witnesses within 14 days of the Preliminary Conference. Expert witness reports shall be exchanged by the Parties within 30 days thereafter. Each Party may depose one fact witness and one expert witness. Unless otherwise agreed in writing, all depositions shall occur within 30 days of the exchange of expert reports.
7. Arbitration Hearing Opening Submissions.
No later than 14 days after the completion of all depositions of expert witnesses, the parties shall submit to the Arbitrator, via email, an Opening Brief, along with any supporting documents, that addresses all claims for relief raised in the Claim and the Response. At the same time, the respective parties shall provide to each other, via email, a copy of their respective Opening Briefs, along with copies of any documents that support the Opening Briefs. The respective Opening Briefs shall not exceed 30 double-spaced typed pages not including exhibits.
In its Opening Brief, the Claimant shall explain why it is entitled to relief and identify, with specificity, the form(s) and magnitude of relief that the Arbitrator should award. In its Opening Brief, the Respondent shall explain why the Arbitrator should not award the requested relief to the Claimant and shall explain the reasons for entitlement to an Award per its counterclaim(s), if any.
8. Arbitration Hearing Response Submissions.
No later than 7 days after the parties have submitted their Opening Briefs, each party may submit to the Arbitrator, via email, a Response Brief. Response Briefs shall not exceed 15 double-spaced, typed pages not including exhibits.
9. The Arbitration Hearing.
In their Opening Briefs, the parties may request oral argument, before the Arbitrator. The Arbitrator will hold a telephonic or video conference hearing if both parties or the Arbitrator request oral argument. Otherwise, the Arbitrator will render a decision on the parties’ claims on the briefs and supporting materials referenced above.
10. Conduct of the Hearing.
The Arbitrator has discretion to conduct the Hearing in any manner that they deem to be most likely to assist them in resolving any questions that they might have after having reviewed the materials that the respective parties have submitted. Strict conformity to the rules of evidence is not required. Attorneys for the respective parties should expect the Arbitrator to pose questions to them before, during or after giving them an opportunity to argue on behalf of their respective clients. The Arbitrator will determine the amount of time each attorney or unrepresented party will have for oral argument provided that the Parties shall be afforded equal time.
11. The Arbitration Award.
If the Arbitrator has conducted a hearing, then no later than 20 days after notice from the Arbitrator that the Arbitration Hearing is closed, the Arbitrator shall complete an Arbitration Award and shall so notify counsel for the Parties. If the Arbitrator has not conducted a hearing, then no later than 21 days after receiving the last briefs from the parties the Arbitrator shall complete the Arbitration Award and, provided that all arbitration fees have been paid, shall deliver to the parties, via email, a copy of the Arbitration Award. Unless otherwise agreed in writing or unless the Parties have chosen to proceed with Final Offer arbitration per Paragraph 13 below, the Arbitration Award shall be in the form of a reasoned award.
12. Failure of A Party to Attend or Participate.
The Arbitrator may proceed with the Arbitration if a Party fails or refuses to participate at any stage of the Arbitration or has failed to pay applicable Arbitration fees. In such event, the Arbitrator may hold the Arbitration Hearing but shall require the remaining Party to present evidence in support of its claim, counterclaim or defense prior to issuing an Arbitration Award. Alternatively, upon notice of a Party’s failure or refusal to participate in the Arbitration, the Arbitrator also has the discretion to terminate the Arbitration.
13. Final Offer Arbitration.
In the interest of efficiency, Parties are encouraged to agree to Final Offer Arbitration. Upon written agreement by the Parties to Final Offer Arbitration, at least 10 days prior to the Arbitration Hearing the Parties shall exchange and provide to the Arbitrator written Proposed Arbitration Awards for money damages that they would demand or offer. Prior to the close of the Arbitration hearing the Parties may exchange revised Proposed Arbitration Awards. The Arbitrator must select only one of the Parties’ Proposed Arbitration Awards. The Proposed Arbitration Award selected by the Arbitrator shall become the Final Arbitration Award.
14. Defense and Indemnity of Arbitrator and Pacific ADR.
The Parties shall not call the Arbitrator or any employee of Pacific ADR as a witness in any court proceeding related to the subject of this dispute and shall defend and pay the cost, including attorney’s fees, of the Arbitrator and any employee of Pacific ADR from subpoenas by any Party or third party. Neither the Arbitrator or any employee of Pacific ADR shall be liable to any Party for any act or omission in connection with this Arbitration.
The Parties agree that this Arbitration is confidential, provided that the Final Arbitration Award may be filed with a court of competent jurisdiction at the close of this proceeding.