Arizona Arbitrator
Marc Kalish - Arizona Mediator
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Why Choose Me As Your Arbitrator

In one respect, arbitration is like a bench trial in court, with the arbitrator considering evidence and deciding the factual and legal issues.  But effective arbitration differs from a trial to a judge in several important respects. 

Court proceedings are governed by the Rules of Civil Procedure, which allow for a lot of discovery.  Arbitration, on the other hand, is governed by the parties’ contract (which is entered into either before or after the dispute arises).  The contract might specify what rules govern the proceeding, and those rules (whether self designed or adopted from a dispute resolution provider, such as the American Arbitration Association) often limit the discovery that is allowed or leave the scope of discovery to the arbitrator’s discretion.  In addition, the law could limit the ability to conduct discovery.  For example, both the Federal Arbitration Act and the Uniform Arbitration Act (adopted in Arizona) do not give an arbitrator the power to subpoena someone who is not a party to the arbitration to give deposition testimony. 

  • Courts are bound by the Rules of Evidence, while arbitrators generally are not (unless the arbitration agreement requires that those rules be followed). 
  • Decisions by a judge after a trial can be appealed, but with very limited exceptions, an arbitrator’s factual and legal determinations are final. 
  • Judges have hundreds of cases active at any one time and it may take a very long time to get a case to trial.  Arbitration should allow for a much quicker final hearing.
  • Maybe of utmost importance to the parties, judges are paid by the government, but the parties pay the arbitrator. 

With those considerations in mind, I try to make the arbitration process as efficient and expeditious as possible.  Assuming the adopted rules do not prescribe otherwise,

  • I generally have the parties exchange information and evidence to limit the need for formal discovery requests. 
  • I require telephonic conferences, without briefing, to resolve discovery disputes. 
  • I discourage dispositive motions, primarily because the governing statutes may require a court to invalidate an arbitration award if a party is not given an opportunity to present evidence at a hearing, and so the costs (in money and time) associated with briefing and arguing such a motion (when it is not based on stipulated facts) are often wasted. 
  • I try to schedule hearings within six months from when the matter is at issue, but I am sensitive to the need for flexibility to accommodate the schedules of everyone involved. 
  • I make sure I come to the final hearing prepared, having read everything the parties have given me (unless instructed not to read something that may be objected to) including pertinent legal authorities. 
  • I urge the parties, both before and during the hearing, to avoid cumulative or repetitive evidence. 
  • Once the matter has been submitted to me for decision, I almost always have an award in one week or less.  And unless instructed otherwise by the parties (which has never happened), my award explains the reasons for my decisions on the various matters at issue.  I have never had an award set aside or modified by a court.
 
 
 
 
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Marc Kalish, Arbitration and Mediation