CPR Launches New Suite of Resources Designed to Expedite Dispute Resolution and Give Parties More Control
New Fast Track Rules for Domestic and International Administered Arbitration, and Concurrent Mediation/Arbitration Clause and Protocol, support and expedite dispute resolution, particularly critical during these difficult economic times
July 13, 2020
New York, NY—The International Institute for Conflict Prevention and Resolution (CPR), a global non-profit organization that manages conflict to enable purpose, announced the launch of new domestic and international Fast Track Rules for Administered Arbitration (and commentary), along with a new CPR Mediation/Arbitration Clause and Protocol.
Fast Track Administered Arbitration Rules
These short-form rules join CPR’s existing Fast Track Rules for Non-Administered Arbitration, published in 2006. The Rules are to be read in conjunction with CPR’s Administered Arbitration Rules, and modify or supersede those rules as indicated.
“CPR’s Fast Track Rules for Administered Arbitration respond to criticisms that arbitration has to up its game,” said Allen Waxman, CPR President & CEO. “The new rules better ensure an expedited arbitration process to drive down cost and time to resolution, imperatives that have become even more critical during these difficult economic times and with courts being backlogged.”
“The new rules include a number of innovative approaches designed to increase the efficiency and decrease the expense of the arbitral process,” said John Buckley, of Williams & Connolly, who chaired the Fast Track Rules Subcommittee. “They give parties the freedom and flexibility to specify the time frame within which an award will be rendered, thus allowing them to tailor the length of the arbitral proceedings to fit their particular needs. They also provide arbitrators with the tools they need to streamline the process in order to achieve that goal, consistent with fundamental fairness and the right to be heard,” he explained.
The rules allow the parties to specify in their arbitration agreement the time period within which the award will be delivered after the constitution of the Tribunal. The rules are designed to allow an award to be delivered within 90 to 180 days but the parties may agree upon a different period. If no time period is specified, a default period of 90 days applies. Parties also have the option of setting a financial threshold for triggering the fast track procedure.
The rules contain enhanced provisions allowing arbitrators to control and narrow the scope of discovery and any evidentiary hearing, including the possibility of conducting a remote or virtual hearing instead of an in-person hearing. The rules require the parties to cooperate in facilitating a timely award and require the tribunal to take their compliance with that obligation into account in fixing and allocating costs at the end of the process.
Finally, the new rules make more express the duty of arbitrators to expedite the process and ask, before they are chosen, to affirm their availability and willingness to apply the rules and issue a timely award.
In addition to John Buckley, the members of the subcommittee were Sherman Kahn, Mauro Rubino-Sammartano, Ken Reisenfeld, Bill Horton, Peter Pettibone, Chuck Patrizia, Richard Mattiaccio, Sashe Dimitroff and Mark McNeill were core to this effort, along with Alexander Leventhal for the Rules’ international version.
CPR Concurrent Mediation/Arbitration Clause and Protocol
“Traditional multi-step clauses envision a mediation occurring before arbitration, and if a settlement is not reached, the case goes forward to arbitration and an award,” said Allen Waxman. “However, for many parties, it is during the arbitration process that resolution can best be accomplished.”
“The theory behind this new clause and protocol is that having mediation proceed concurrently with the arbitration offers the parties an ongoing opportunity for settlement that can be advantaged and reinforced by developments in the arbitral process,” said Erin Gleason Alvarez of Gleason Alvarez ADR, who co-chaired the committee to create this new resource. John Buckley, of Williams & Connolly, the other co-chair of the committee, explained that “setting parallel processes in motion, and keeping the mediator informed of the arbitration’s procedural timetable, enables the mediator to schedule settlement conferences at critical junctures and optimize the chances for amicable resolution.”
The clause reflects the realization that, through the disclosure process, the parties in arbitration inevitably gain additional information that allows them to better assess the strengths and weaknesses of their respective cases. Having a parallel, ongoing mediation means the parties always have an opportunity, as they continue to re-assess their positions, to explore mutually agreeable solutions with the assistance of a mediator. The clause carries the additional advantage that any settlement reached in mediation can be entered by the arbitral tribunal as a consent order. Finally, the neutrals for the two processes are different; there is no confusion of roles since the arbitrator does not become involved in the mediation.
AcumenADR’s Noah Hanft, former President and CEO of CPR who initially launched this project during his tenure, added, “CPR’s vision is that the parties should have the flexibility to choose the timing of a mediation, whether it occurs before or during the arbitration or both. The organization has managed to anticipate and provide for all of these possibilities. It is incredibly satisfying to see this truly innovative clause come to life.”
Established in 1977, CPR is an independent nonprofit organization that helps prevent and resolve legal conflict more effectively and efficiently. It manages conflict to enable purpose.
The CPR Institute drives a global prevention and dispute resolution culture through the thought leadership of its diverse membership of top companies, law firms, lawyers, academics, and leading mediators and arbitrators around the world. The Institute convenes best practice and industry-oriented committees and hosts global and regional meetings to share practices and develop innovative tools and resources. The Institute trains on dispute prevention and resolution, publishes a monthly journal on related topics, and advocates for supporting and expanding the capacity for dispute prevention and resolution globally.
CPR Dispute Resolution harnesses the thought leadership and output of the Institute while providing independent ADR services – mediation, arbitration, early neutral evaluation, dispute resolution boards and others – through innovative and practical rules and procedures and through CPR’s Panel of Distinguished Neutrals.