Arbitration|Mediation

New AAA Arbitration Rules

The American Arbitration Association has issued new Commercial Arbitration Rules effective October 1, 2013.  The changes seem designed to better serve disputants and enhance the commercial rationality of arbitration under the AAA’s auspices.  As to be expected from the AAA, they are elegant and reflect the thinking of many stakeholders.

Some changes include:

New Rule R-9, which designates a mandatory mediation step in the arbitration process, subject to the right of any party unilaterally to opt out;

Rule R-21, regulating the Preliminary Hearing and setting forth express topics to be covered as soon as practicable after the appointment of the arbitrator;

Further arbitral authority and control of the exchange and production of information, including electronic information, in an effort to encourage prompt and economical resolution;

Enhanced arbitral enforcement powers in Rule R-23, in the context of electronic discovery, allocation of costs of discovery, and addressing willful non-compliance with any order;

R-33, specifically granting arbitrators the authority to make rulings upon dispositive motions;

R-38, authorizing and making mandatory certain emergency measures of protection;

R-57, strengthening the options of an arbitrator in the event of a party’s non-payment, including limiting the nan-paying party’s ability to assert or to pursue claims;

R-58, authorizing sanctions where a party fails to comply with its obligations under the rules or with an order of the arbitrator.

Other changes address less critical areas of the process.  I particularly welcome the default expectation of mediation of claims filed with the Association.  A few arbitrators have expressed concern that this might drive cases to mediators and further decrease an already slowing pace of commercial arbitration.  First, I doubt it.  Second, isn’t that what all of us in the dispute resolution field are seeking — the early and economical resolution of disputes?

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