Ti	=	MEASURES TO ENHANCE ARBITRATION EFFICIENCY –
1.Ti	=	JAMS OPTIONAL EXPEDITED ARBITRATION PROCEDURES
1.0.1.sec	=	In recent years, there has been mounting criticism that arbitration has become so costly and time-consuming that the distinction between arbitration and court litigation has become blurred. In response, JAMS acted on January 6, 2010 to adopt Recommended Arbitration Discovery Protocols for Domestic Commercial Cases ("JAMS Discovery Protocols"), and on October 1, 2010, it amended the JAMS Arbitration Rules to add Rules 16.1 and 16.2.
1.0.2.0.sec	=	Rules 16.1 and 16.2 set forth expedited arbitration procedures that may be incorporated in the dispute resolution clause in the parties' commercial contract or in a post-dispute submission to Arbitration. Many of the changes effected by the expedited procedures are based on the JAMS Discovery Protocols. They include:
1.0.2.1.sec	=	A requirement that prior to the first preliminary conference, the parties produce documents pursuant to Rule 17(a) of the JAMS Arbitration Rules.
1.0.2.2.sec	=	Limiting document requests to documents that: (i) are directly relevant to the matters in issue in the case or to the case's outcome; (ii) are reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and (iii) do not include broad phraseology, such as "all documents directly or indirectly related to."
1.0.2.3.sec	=	Limiting E-Discovery as suggested in the JAMS Discovery Protocols.
Limiting depositions of percipient witnesses to one per side unless it is determined, based on the factual context of the arbitration, that more depositions are warranted. In making any such determination, the Arbitrator shall apply the criteria set forth in the JAMS Discovery Protocols.	=
1.0.2.4.sec	=	Limiting expert depositions, if any, as follows: Where expert reports are produced to the other side in advance of the hearing on the merits, expert depositions may be allowed only by agreement of the parties or by order of the Arbitrator for good cause shown.
1.0.2.5.sec	=	Requiring the resolution of discovery disputes on an expedited basis.
1.0.2.6.sec	=	Setting a discovery cutoff not to exceed 90 days after the first preliminary conference for percipient discovery and not to exceed 105 days for expert discovery, if any.
1.0.2.7.sec	=	Eliminating the use of dispositive motions except as allowed by the Arbitrator applying the criteria set forth in the JAMS Discovery Protocols.
Mandating that the hearing on the merits be held on consecutive business days unless otherwise agreed by the parties or ordered by the Arbitrator	=
1.0.2.8.sec	=	Requiring the hearing to commence within 60 days after the cutoff for percipient discovery. This will typically get a case to hearing no more than 135 days after the first preliminary conference.
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1.0.3.sec	=	A complete copy of Rules 16.1 and 16.2 can be found at http: www.jamsadr.com/rules-comprehensive-arbitration/.
1.0.4.sec	=	If parties wish the complete benefit of Rules 16.1 and 16.2, they can accomplish this by including the following language in the dispute resolution clause of their contract:
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1.1.sec	=	Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules
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2.Ti	=	MORE LIMITED EFFICIENCY-ENHANCING PROVISIONS
2.0.sec	=	In certain instances, parties may wish to include in their dispute resolution clauses language that is not as comprehensive as that suggested in Rules 16.1 and 16.2, but that will nonetheless facilitate the efficient conduct of any arbitration arising under the Agreement. Examples of such efficiency-enhancing clauses are set forth below.
2.1.Ti	=	Document Requests
2.1.0.sec	=	In any arbitration arising out of or related to this Agreement, requests for documents:
2.1.1.sec	=	Shall be limited to documents which are directly relevant to significant issues in the case or to the case's outcome;
2.1.2.sec	=	Shall be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and
2.1.3.sec	=	Shall not include broad phraseology such as "all documents directly or indirectly related to." (See JAMS Discovery Protocols; JAMS Arbitration Rule 16.2).
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2.2.Ti	=	E-Discovery
2.2.0.sec	=	In any arbitration arising out of or related to this Agreement:
2.2.1.sec	=	There shall be production of electronic documents only from sources used in the ordinary course of business. Absent a showing of compelling need, no such documents are required to be produced from backup servers, tapes or other media.
2.2.2.sec	=	Absent a showing of compelling need, the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format which is usable by the party receiving the e-documents and convenient and economical for the producing party. Absent a showing of compelling need, the parties need not produce metadata, with the exception of header fields for email correspondence.
2.2.3.sec	=	The description of custodians from whom electronic documents may be collected shall be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute.
2.2.4.sec	=	Where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator will either deny such requests or order disclosure on condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award. (See JAMS Discovery Protocols; JAMS Arbitration Rule 16.2).
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2.3.Ti	=	Interrogatories and Requests to Admit
2.3.sec	=	In any arbitration arising out of or related to this Agreement, there shall be no interrogatories or requests to admit.
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3.Ti	=	Depositions
3.0.1.sec	=	In international arbitrations, the prevailing practice is that depositions are not permitted. But it also is true in international arbitrations that written witness statements are normally used in lieu of oral direct testimony and that these written statements are exchanged well in advance of the hearing on the merits. This procedure can go far in obviating any need for depositions.
3.0.2.sec	=	In domestic commercial arbitrations, limited depositions of key witnesses can significantly shorten cross-examination and shorten the hearing on the merits. This is the reason why JAMS Comprehensive Arbitration Rule 17(a) provides that each party may take one deposition of another party and may apply to take additional depositions, if deemed necessary.
3.0.3.sec	=	If not carefully controlled, however, depositions in domestic arbitration can become extremely expensive, wasteful and time-consuming. The following language in a dispute resolution clause of a domestic agreement can enable the parties to enjoy the benefits of depositions while at the same time keeping them well under control:
3.1.sec	=	In any arbitration arising out of or related to this Agreement, each side may take three (3)* discovery depositions. Each side's depositions are to consume no more than a total of fifteen (15)* hours. There are to be no speaking objections at the depositions, except to preserve privilege. The total period for the taking of depositions shall not exceed six (6)* weeks.
3.00.sec	=	Note: The asterisked numbers can of course be changed to comport with the particular circumstances of each case. See JAMS Discovery Protocols; JAMS Arbitration Rule 16.2.
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4.Ti	=	Dispositive Motions
4.0.1.sec	=	In arbitration, "dispositive" motions can cause significant delay and unduly prolong the discovery period. Such motions are commonly based on lengthy briefs and recitals of facts and, after much time, labor and expense, are generally denied on the grounds that they raise issues of fact and are inconsistent with the spirit of arbitration. On the other hand, dispositive motions can sometimes enhance the efficiency of the arbitration process if directed to discrete legal issues, such as statute of limitations or defenses based on clear contractual provisions. In such circumstances, an appropriately framed dispositive motion can eliminate the need for expensive and time-consuming discovery.
4.0.2.sec	=	The issue of dispositive motions can be effectively addressed in the dispute resolution clause by inclusion of the following language:
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4.1.sec	=	In any arbitration arising out of or related to this Agreement:
Any party wishing to make a dispositive motion shall first submit a brief letter (not exceeding five pages) explaining why the motion has merit and why it would speed the proceeding and make it more cost-effective. The other side shall have a brief period within which to respond.	=
4.2.sec	=	Based on the letters, the arbitrator will decide whether to proceed with more comprehensive briefing and argument on the proposed motion.
4.3.sec	=	If the arbitrator decides to go forward with the motion, he/she will place page limits on the briefs and set an accelerated schedule for the disposition of the motion.
4.4.sec	=	Under ordinary circumstances, the pendency of such a motion will not serve to stay any aspect of the arbitration or adjourn any pending deadlines.
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5.Ti	=	Deadlines for Completion of Arbitration and Interim Phases
5.0.sec	=	The following time limits are to apply to any arbitration arising out of or related to this Agreement:
5.1.sec	=	Discovery is to be completed within ___ days of the service of the arbitration demand.
5.2.sec	=	The evidentiary hearing on the merits ("Hearing") is to commence within ___ days of the service of the arbitration demand.
5.3.sec	=	At the Hearing, each side is to be allotted ___ days for presentation of direct evidence and for cross examination.
5.4.sec	=	A brief, reasoned award is to be rendered within 45 days of the close of the Hearing or within 45 days of service of post-hearing briefs if the arbitrator(s) direct the service of such briefs.
5.5.sec	=	The arbitrator(s) must agree to the foregoing deadlines before accepting appointment.
5.6.sec	=	Failure to meet any of the foregoing deadlines will not render the award invalid, unenforceable or subject to being vacated. The arbitrator(s), however, may impose appropriate sanctions and draw appropriate adverse inferences against the party primarily responsible for the failure to meet any such deadlines.
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1 Article 30.2 of the JAMS International Arbitration Rules and Procedures already precludes an award of punitive damages "unless the parties agree otherwise…[or] unless a statute requires that compensatory damages be increased in a specified manner."	=
2 The law related to limitation of liability clauses varies significantly from jurisdiction to jurisdiction. Parties wishing to include such a clause in a contract should check the applicable law before doing so.	=
JAMS is the largest private alternative dispute resolution provider in the world. With its prestigious panel of neutrals, JAMS specializes in mediating and arbitrating complex, multi-party, business/commercial cases – those in which the choice of neutral is crucial.	=
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