Technical disputes are often complex and often require quick and cost-effective resolution. Some organizations are adopting special rules for technical arbitration, while others rely on their comprehensive rules and expedited procedures, administered by experienced arbitrators with the expertise and management skills to control the proceedings and work with the parties to implement flexible Resolution process, suitable for disputes.
The rules and arbitration provider are usually specified in the arbitration clause of the transaction documents. However, parties can agree on the practices they wish to include in arbitration. This article looks at best practices that parties should consider in the context of JAMS’ comprehensive arbitration rules and procedures, but may be incorporated into any provider’s rules with the consent of the parties and a knowledgeable arbitrator. (Drafting arbitration clauses for technology deals will be covered in a follow-up blog.)
Remember: Arbitration enables you to design your own process. Implement with an arbitrator.
- Use one arbitrator instead of three, unless exceptionally large cases justify the need for three decision makers. Three presiding arbitrators may be better than one presiding arbitrator, but it will be more difficult to coordinate the schedule between counsel and the three arbitrators, which can be problematic when a quick resolution is important. On the other hand, three arbitrators can prevent one arbitrator from being wrong when it comes to corporate bets, or precedent interpretations of licenses and contracts. Arbitrators benefit from consulting with each other in difficult technical cases.
- Selection of managing arbitrators with experience in technology and IP cases. Managing arbitrators know how to manage cases to bring them to trial quickly while still getting the parties ready. An arbitrator may push one side or the other, but he or she will take seriously his or her obligation to resolve the case as quickly as possible.
- Schedule an initial case management meeting in a timely manner. Experienced arbitrators will do this even if one party objects. The case management conference is where the arbitrator and the parties create a timetable and roadmap for the entire case. Prepare a list of topics to be discussed and include them in the arbitrator’s initial arbitration management meeting order.
- topics to discuss at the outset Arbitration Management Meeting.
- Where possible, arbitrators should require that all parties have not only counsel but also party representatives at the initial arbitration management meeting to ensure informed discussion of technical issues.
- Discovery Deadlines and Hearing Schedule
- The nature of the technology-related issues in the dispute; what unique issues may arise
- Production and management of sensitive technology-related information
- The need for protective and non-disclosure orders (see below)
- Discovery and access to expert evidence
- Phased discovery and hearings required
- Use the expedited procedure. Technical disputes can be complex, but they also often (indeed, almost always) require expedited resolution. Technology is valuable, and bundling parties and technology in arbitration interferes with parties’ business, funding for start-ups and the development of further technology. In general, aim for a fast program. (For example, JAMS Expedited Procedures.) Expedited procedures set limits on discovery, motions, and briefings, as well as discovery and hearing deadlines.
- Prescribe or apply for a protective order regarding confidential information. Technology disputes often involve valuable technical and scientific information that is kept confidential from one party. This confidential information comes in many forms, and each party may have many. Prepare a proposed protective order for the arbitrator to sign to cover the information that the parties will provide in the proceeding.
- Prescribe or apply for nondisclosure orders governing external communications, orders, and awards. Arbitration is conducted privately (the public is not allowed to attend hearings or view files), but in order to keep confidentiality from third parties you need an agreement, confirmed by order of the arbitrator, that prohibits disclosure of all disclosure materials in the arbitration procedure, or even the existence of the arbitration . And don’t forget to protect the awards. In the absence of an order confirming the confidentiality of the award, the winning party can broadcast the award, and either party can take the award to court for confirmation or reversal. Consent or seek an order to provide a confidential version of the award (to the eyes of attorneys only) and a sanitized version sufficient to be filed in court if required and a petition to confirm or vacate the award.
- Deciding whether to use multimodal dispute resolution in technical cases. Knowledgeable arbitrators can also assist in mediating portions of the case during the arbitration process, allowing for a more efficient resolution of the case. Multimodal dispute resolution or arb-med-arb is a valuable technique that needs to be carefully documented and implemented. (A follow-up blog will discuss multimodal dispute resolution.)