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By: Erin E. Lamb
Many attorneys assume that once a case is in private arbitration, dispositive motions are against the rules and are no longer a useful tool to resolve cases. How could an arbitrator have the power to consider a dispositive motion? After all, arbitration is sold to all parties as a process that all parties must willingly opt into — in the interest of limiting the complexities of arbitration, not adding to them, as dispositive motions do. Most attorneys participating in arbitration therefore would never think of pursuing dispositive motions, even when faced with res judicata or statute of limitations issues.
This is an incorrect and unduly limiting view of the arbitration process. None other than the Supreme Court of the United States, has upheld the power of an arbitrator to adopt procedures necessary to give effect to the parties’ arbitration agreement. Stolt-Neilsen v. AnimalFeeds International, 559 U.S. 663 (2010). It’s up to the arbitrator to determine procedural questions by looking at the arbitration agreement. In turn, most arbitration agreements invoke an arbitration providers’ rules. Most rules, including the most recent American Arbitration Association rules (last updated in 2009), indirectly give arbitrators expansive powers and wide latitude in the procedures used to give effect to the arbitration agreement.
The 2009 American Arbitration Association rules, still in effect ten years later, state that arbitrators are required to “take such steps as they may deem necessary or desirable to avoid delay and to achieve just, speedy, and cost-effective resolution of large, complex, commercial cases.” In fact, in AAA commercial cases, the rules directly address dispositive motions: “The arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case.” The use of “only” makes the rule seem limiting; in reality, it directly gives arbitrators the ability to hear and rule on said motions. Multiple federal courts have affirmed arbitration awards where the arbitrator ruled on a motion for summary judgment or on summary disposition. Some arbitration provider’s rules even specifically allow for it – the JAMS rules specifically allow for the filing of dispositive motions even under objection from the other side.
Simply put, unless your arbitration agreement specifically, plainly, and expressly prohibits dispositive motions, an arbitrator is empowered to grant any relief necessary to reach a final determination of the matter, including dispositive motions. Only in the face of a specific written agreement would an arbitrator be acting outside the contractually delegated authority of the arbitration agreement. This is an important thing to consider for all attorneys in arbitration cases – and at the time of the agreement to arbitrate, not after.
If you have any questions or would like more information, please contact Erin Lamb at [email protected].