Documents – only procedures are allowed by most arbitration institution rules. In ad hoc arbitrations, the parties may invoke rules which allow for documents only procedures or opt for this procedure in exercise of party autonomy.
As the name suggests, a documents-only procedure in arbitration allows the arbitrator, with the consent of the parties, to write and deliver the award without conducting a trial (in the conventional sense of sworn witnesses giving oral evidence and producing documents).
Parties will exchange preliminary pleadings, these being a statement of claim and response, exchange documents as well as signed witness statements or sworn declarations.
Through procedural orders, the arbitral tribunal would allow parties to exchange written summaries of their cases, usually the claimant first, the respondent next and if needed, the claimant will have one final bite at the pie.
The main advantage of a documents-only procedure is that it saves time and by effect saves money and man-hours.
Where the issues are not complex
In some disputes, issues in dispute can be very straightforward.
Where parties find themselves in arbitration over a single or straightforward issue for determination, it would be advisable to consider a documents-only procedure.
A good example is where sums due under a contract have been settled fully and the only issue in dispute is whether interest is due and if so, at what rates and over what period.
The value of the subject matter is low
‘High’ or ‘low’ values are relative terms. However, if the likely cost of a full blown oral hearing when compared to the value of the subject at stake creates a possibility that the cost will not justify the gain, then a documents—only procedure ought to be considered.
An oral hearing where both parties are represented by lawyers can be very costly. Parties will need to factor in the hourly rates of the arbitral tribunal, each lawyer, a stenographer, an arbitral secretary as well the cost of the venue. There may be the costs of the witnesses including airfare and/or hotel accommodation.
All these costs can be reduced if not completely avoided through a documents-only procedure. So, looking at the value of the dispute, is it worth it? That is the question to ponder.
Quote: “…The un-awakened mind tends to make war against the way things are. To follow a path with heart, we must understand the whole process of making war, within ourselves and without, how it begins and how it ends. War’s roots are in ignorance…”
Jack Kornfield: A Path With Heart: A Guide Through the Perils and Promises of Spiritual Life
- Seek an opinion from your legal advisor as to whether mediation is a viable option. The nature of your dispute may not be suitable for mediation
- Read carefully and understand any draft mediation agreement before approving the same
- Understand the basis of the mediator’s charges and other additional costs such as venue, negotiate a deposit and understand when further payment will be expected
- Confirm that the proposed mediator(s) is/are qualified to conduct the mediation
- Never propose mediation without consulting a legal advisor as you could unknowingly make admissions that can be used against you if the mediation fails.
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