Perhaps, it’s because they were built in the wrong direction.

Too often the arbitrator and the parties start their schedule at the beginning of a timeline. They set a deadline for information exchange; then, they work forward on the calendar to set the dates for other events, like expert reports; and finally, they land on a hearing date that feels roughly right. The problem is that each phase expands to fill whatever space it is given, and the hearing date, having been chosen somewhat arbitrarily, has no real weight behind it. When a problem comes up, the hearing date moves. It’s like when a commuter train gets delayed, and every departure behind it backs up.

Why not schedule the other way around? I prefer to set the hearing date first. Once we have that in place, we can move on to set lead-up deadlines that allow everyone to be ready to go forward on the merits. And those interim dates now have weight, since we all are working to be prepared on a date certain.

Being able to set a hearing date this early in the case requires planning from both the arbitrator and counsel. In advance of the initial conference, I ask each side to communicate, so they can jointly come in with three alternative sets of hearing dates that actually work for all counsel, their clients, and their witnesses. I tell them upfront about any chunks of time when I am unavailable, such as another hearing, a conference, or a vacation. Therefore, we can set a hearing date based on real options, not dates that sound fine in the moment and turn out to be problems when counsel check back with their clients and witnesses.

To be clear: interim deadlines belong to the parties. If both sides want to shift a document exchange cutoff or give themselves another few weeks on expert reports, that is their call. The arbitrator should generally stay out of the way. Party autonomy matters in arbitration, and scheduling flexibility is part of what makes the process attractive. What they cannot do on their own is move the hearing date itself or any case management conferences along the way. Those are mine to protect, and I do.

The direction of scheduling sounds like a minor nit. However, in practice it changes everything about how a case moves. To quote Leonardo Da Vinci (why not?), “He who loves practice without theory is like a sailor who boards ship without rudder and compass and knows not where he may cast.”

David Reif, FCIArb

Reif ADR

203-641-0991