LEAN ENTERPRISE FRAMEWORK FOR EFFICIENT ARBITRATION PROCESS DESIGN:
GUIDE FOR IMPLEMENTATION VIA THE TEMPLATES
NOTES: The Templates are an efficient way to implement the Framework but are of much reduced value if used without analysis based on the considerations and guidance set forth in this Guide.
See the Introduction and Overview for an explanation of the methodology underlying the Framework.
PART A. Efficient Evidence Identification
LEAN Consideration:
Before defining “Solutions”, i.e., arbitration process steps to propose, accept or commit to, start with defining the “Problem(s)” to be solved:
Problem 1: What issues or facts do you need to prove?
Problem 2: What insufficiencies are there in the evidence you possess (being, e.g., your own documents)?
Problem 3: What are the most efficient ways to complete the evidence necessary to establish your case?[1]
Then focus on the solution. Therefore sequentially:
Identify needed evidence to prove your case.
Identify documentary evidence you already possess.
Identify additional evidence needed from other sources (witness testimony, document production, experts).
Plan and propose to have recourse to such other sources only to the extent of insufficiencies in the existing documentary evidence.
Lean Consideration: Only conduct processes of which the output will be used as an input into a subsequent step. I.e., if there is no necessity to generate proof from additional sources, avoid allocating resources to generating redundancies. A default assumption should not be that more evidence is better.
Responses to the above questions generate the three initial Templates:
Template 1: Evidence Identification and Source
Template 2: Witness Evidence
Template 3: Expert Evidence
Plotting these issues first, prior to the sequential process steps, feeds the efficient design of the process in relation to the arbitration case at hand.
Specifically, these first three Templates record:
-need or not of witnesses, experts, inspection, document production
-cost of including witnesses, experts, inspection, document production
-needed hearing duration.
1. Template 1: Main Issues and Facts to Prove
Identify the main issues in the case (“Main Issues”). And, in doing so, identify the facts as well which need to be proven in relation to these issues.
Identify, for example, the top three or five points of strength in your case and the three to five points you anticipate the opposing party to raise. Or identify the key issues for each party’s position by use of a litigation decision tree (i.e. a decision tree to calculate an expected value based on probabilistically weighted outcomes).
Presumably, a party should have a reasonable idea of these issues and facts before commencing the arbitration since most companies don’t launch an arbitration without having first engaged in substantive back and forth with the opposing party–meaning each party has put forth conflicting or contradictory positions which have not been resolved and led to a formal dispute process.
Include in Template 1 Evidence Identification and Source: the Main Issues and list of key facts for each issue.
2. Template 1: Identify Your Documents which are Proof of Main Issues and Key Facts
In relation to the Main Issues, identify the key documents you possess which are evidence of the event, circumstance, or other fact that you need to prove or disprove (and therefore to ultimately obtain a favorable award).
Include in Template 1 Evidence Identification and Source: Documents are available to prove a particular issue or fact (yes/no/ or partially) (or better yet, list of documents).
LEAN Considerations: Are all key points covered by available documents? Does the Tribunal need any other evidence as an input to an award? Could each issue or the entire case be proved on documents alone?
3. Template 1: Identify “Gaps” in Your Documents in Relation to Main Issues and Key Facts You Need to Prove
Include in Template 1 Evidence Identification and Source: Identify for each Main Issue any aspects of the event or circumstance or other fact you need to prove or disprove and for which you possess insufficient documentary evidence: undocumented gaps, or documents are unclear, need explanation, or are inconsistent, contradictory, or otherwise insufficient (“Gaps”).
LEAN Consideration: Project the generation of evidence from sources other than documents you possess (steps 4-7 below) only to the extent that you believe such other evidence would be an input in some way into the Tribunal award, e.g. decisive in Tribunal deliberations, contribute materially to the Tribunal deliberations, or even cited by the Tribunal in its award. If not, then it is probably an unnecessary work output. Don’t seek redundant sources of proof from witnesses or the other party’s documents.
4. Template 1: Identify Witnesses Whose Testimony Can Fill Identified Gaps in your Document Evidence
Identify the witness or witnesses whose testimony can fill the identified Gap.
The problem to solve and question to answer is NOT “Who do we want to present as witnesses?”
The problem to solve is “Which identified evidence Gaps can best be filled by fact witness testimony, and in such case by which witnesses?”
In some cases, opponent’s documents or an expert may be a better way to fill a Gap.
Include in Template 1 Evidence Identification and Source: Identify witness names on the row for facts for which the available documents are insufficient. If more than one witness could testify regarding the fact, list both to start; keep in mind the risk or relative likelihood of one witness not being available for a hearing and the possible efficiencies of broader fact coverage of one witness over another. Take into account as well the considerations in section 6 below on management availability to support the case.
5. Template 2: Define the Necessary Scope of Testimony of the Proposed Witnesses
The scope should correspond to and be limited to issues and facts where available documents have been noted as insufficient evidence (Gaps).
LEAN Consideration: Using witnesses to go beyond filling Gaps in evidence in order to tell a story which is already told in written submissions and substantiated with documents, is generally not efficient: if witness testimony at the hearing is redundant to an existing document or other source, then it is not a unique “output” of the hearing which is a necessary “input” to the Tribunal for its deliberations and award.
Include in Template 2 Witness Evidence: For each witness, list the numbers of each issue/fact from the Template 1 Evidence Identification and Source for which her/his testimony will fill a documentary gap.
Include in Template 2 Witness Evidence: Estimated length in pages of witness statement.
LEAN Consideration: Estimate the length of a witness statement necessary to address only Gaps.
Generally, avoid planning and preparing witness testimony which is merely “nice to have”, or “just in case”.
While planning “nice to haves” and “just in case” may be motivated as risk management, such measures can be not “just in time”, i.e. too early, and too broad in scope, instead of just what is needed and not more. Given the significant external and internal cost for witnesses, wait to expand witness testimony beyond filling initial identified Gaps only if a “need to have” arises later, for example where and if the opposing party makes submissions creating new “Gaps” i.e. needing witness rebuttal.
Too much anticipation of opposing party position can be “too early” and lead to the need to rework witness testimony; some or all of the initial witness testimony becoming “waste”.
This is also relevant to the next consideration of “all in” time needed from witnesses. Repeated involvement of witnesses in the case has significant cost and time impacts for the company as well.
6. Template 2: Estimate Time Needed at Hearing for Each Witness, External (Counsel) Cost for Witness Testimony Based on the “Necessary” Scope, and time required of Each Witness
a) Hearing testimony
Having defined the scope of Witness testimony which is necessary (to fill Gaps), estimate the length of time necessary for witnesses’ testimony at the hearing (and generally assume the opposing party’s time will be the same).
Include in Template 2 Witness Evidence: Estimated duration of testimony per party needed at hearing.
b) “All in” time required of each needed witness
Witnesses time is an internal company cost which can be substantial. Witness involvement typically goes well beyond preparing a witness statement and the preparation of witness statement and testimony at a hearing
The all-in analysis can be a consideration for deciding which witness to work with in relation to particular issue or facts.
“All-in” time needed of a witness includes help with document search and review, interviews, writing and correcting witness statements (both initial and possible rebuttal statements), time to brief/discuss with experts and review expert reports, review of the opposing party’s witness statements and expert reports, preparation for hearing, attendance to hearing.
Keep in mind the risks of overextending witnesses, or of being unrealistic about witness contributions: there are often huge constraints on witness time and availability, not just for the hearing but above all the preparation time, which can also be increased or reduced as a function of the scope of the witness evidence.
Choosing witnesses who have limited time for participation and preparation can create risks for testimony which is not helpful or even damaging.
And there is always the risk of a witness leaving the company and refusing to continue on the case.
Include in the Template 2 Witness Evidence: Total witness time needed “all- in.”
c) External costs related to witnesses
Include in Template 2 Witness Evidence:
- Party witnesses: estimated total cost of external counsel to work with all the party’s own witnesses.
- Opponent witnesses: assume the cost of counsel to review opposing party witness statements and preparing rebuttal, cross examination at hearing, etc. is some percentage, e.g. 50% of the amount of time on the party’s own witnesses. Use a different percentage if you feel more appropriate.
Include in Template 2 Witness Evidence, Total External Cost of witnesses (mainly counsel) by using a multiplier (e.g. 150%) of the counsel cost relating to a party’s own witnesses. And include as well possible compensation to ex-employees, travel.
Include this Total External Cost amount in Template 5 Cost Budget.
7. Template 1: Identify Need, If Any, for Documents to Be Produced by the Opponent to Fill Evidence Gaps in Your Documents
LEAN Consideration: Before planning on including Document Production in the arbitration, the problem to solve and question to ask is NOT “On what topics would I like to see the opponents’ documents?”
The problems to solve and questions to answer are “For what problems are Document Production the solution? In particular, are there Gaps (undocumented facts, or your own documents are incomplete, ambiguous or inconsistent) in relation to which I believe the opponent possesses documents to fill the Gap?”
On the other hand, simply “fishing” in your opponents’ documents in a broad manner hoping to find some smoking gun or otherwise helpful documents is not a solution to an identified problem and increases costs with uncertain benefits. And note that making broad requests for document production implies submitting to reciprocally broad document requests, both of which typically increase costs substantially.
Include in Template 1 , Identification and Source: Identify for each Main Issue “fact Gap” documents possessed by the opposing party that could be used to fill the Gap to establish the event, circumstance, or fact.
IF document production needed, Section B.8 below deals with the Lean approach to criteria and costs thereof.
8. Template 1 and Template 3: Identify Need for and Estimated Cost of Expert Evidence in Relation to Gaps in Evidence not proved by Documents and Fact Witnesses
a) Need for Experts
LEAN Consideration: What problem are you trying to solve with expert testimony?
Has the opposing party taken a contradictory position on some technical issue? If so, are your other available evidence sources–fact witness, your documents or the other party’s documents–insufficient to convince the Tribunal of an interpretation or analysis of the facts?
Of course, it is possible, and could be LEAN to conclude, no expert is required.
Include in Template 1 Evidence Identification and Source: Identify Main Issues if any for which expert evidence would be required, i.e. a Gap in the sense that certain facts require technical analysis or interpretation.
Include in Template 3 Expert Evidence: The issue numbers from Template 1 for which expert evidence is needed, if applicable. Limit the expert scope to these issues.
b) Expert Costs
In the case an expert is necessary, consider whether a tribunal-appointed expert or party-appointed experts would be most efficient. See discussion in Process Steps, in Section B.7.c below.
In estimating costs related to expert testimony, keep in mind they can include analysis of data (which the party must provide), calculations (which the party must check), drafting of reports (which the party must check), meetings with the party and counsel, rebuttal reports, joint reports, and expert conferencing. External counsel costs and consumption of the party’s internal resources in relation to experts will be proportionate.
Include in Template 3 Expert Evidence:
– estimated cost of party’s expert or cost of party-appointed expert or shared cost of Tribunal expert plus party’s own private expert.
-the cost of counsel to work with a party’s own experts.
-the cost of counsel in relation to review opposing party ‘s expert reports, or review of a Tribunal appointed expert’s report, and review of party’s own expert’s rebuttal, and preparing and conducting cross examination at hearing of the opposing party’ expert or Tribunal expert. Assume this cost is a percentage, e.g. 50% of the cost (and time) counsel spends on the party’s own expert. Use a different percentage if you feel more appropriate.
Include in Template 3 (and Template 5 Cost Budget): Total Counsel Cost relating to experts, an amount using a multiplier (e.g. 150% using above assumption ) of the counsel cost relating to a party’s own experts.
c) Inspections
LEAN Considerations: Is an inspection needed, and if so why? What problem is an Inspection designed to solve? What information would an expert learn from an inspection that you don’t otherwise have access to, or no other means of obtaining? Would an inspection make an expert’s work more efficient, aid in identifying common premises, and/or more convincing/ less speculative?
A request for inspection should not simply be a “just in case/nice to have”.
Is there a significant cost involved (e.g. travel)?
Include in Template 3 Expert Evidence: Inspection necessary (yes, no).
Include in Template 3 Expert Evidence (and in Template 5 Cost Budget): estimated cost of inspections, if any (expert time, travel time, counsel time to attend, travel costs of all participants including party representatives).
See also Section B.7 for further considerations relating to the procedural options for Experts.
9. Template 3: Estimate of the Time Required at Hearing for Expert Testimony, If Any
Strictly in relation to the issues identified in Step 8.a. above.
Include in Template 3 Expert Evidence: estimated time for Expert Testimony at hearing.
10. Summary: The Outputs of Above Steps
The outputs of above steps can now be used to formulate proposals for the first procedural meeting (CMC) and Procedural Order No. 1 (PO1), or possibly some proposals to be decided at a second CMC2/PO2: see the next section B.2. (“Timing of Procedural Order and Procedural Timetable: Decide in one step or two?”).
In particular, Templates 1 to 3 record:
-the necessity, or not, for fact Witnesses, Expert Witnesses, Inspection, and Document Production and when necessary, the needed scope of each,
– an estimated cost of fact Witnesses, Expert Witnesses, and Inspection
(the costs of Document Production are dealt with in Section B.8 below),
-an estimated length of time required for witness and expert testimony at the hearing—and therefore the duration of a hearing.
NOTE: Costs from Templates 1-3 for these activities to be included in the Template 5 Cost Budget for all the procedural steps.
B. PROCEDURAL STEP-BY-STEP DESIGN FOR COST & TIME EFFICIENCIES
Having defined the needs for evidence in your case, the following considerations are used to determine the need for, or needed scope of, and possible options for, the typical arbitration Process Steps in a particular arbitration to be proposed in the initial Procedural Order (to include in Template 4 “Process Steps”), as well as a cost budget and time considerations (to include in Template 5 “Cost Budget”).
Note: more time in itself, without adding activities, typically leads to more cost (internal management, external counsel, arbitrators).
- Appointment of Arbitrators
If the arbitration agreement (contract clause) provides for the arbitrator appointment method, there may not be an avenue for seeking Lean efficiencies, unless there is a joint desire of the parties to consider and agree on any changes. If there is such a desire, or if the appointment method is not constrained by the parties’ arbitration agreement or agreed institution rules, then consider the following.
LEAN Consideration: Is there a value added for the process of party-nominated arbitrators compared to requesting the arbitration institution to appoint arbitrators having an identified background or profile, or asking the institution to provide lists of potential arbitrators having an identified background or profile, for the parties to rank, which ranking determines the arbitrators?
There may be benefits of a potentially lengthier and more costly party nomination procedure as a function of the identified issues in the case, particularly highly specialized issues, and complexity.
Questions to consider:
- Even where arbitrators with specific expertise or profiles appear necessary, could those profiles be sufficiently defined and communicated to institution to make the nomination, or provide lists to the parties to rank ? (unless the contract arbitration clause precludes this).
- Do the parties believe they could more thoroughly and accurately identify suitable arbitrators and therefore lead to better or fairer outcomes?
- Some might feel that party appointment is preferable in order to choose an arbitrator potentially sympathetic to its case, but is such “advantage” neutralized by the other party’s similar choice?
Include in Template 4 Process Steps, Arbitrator selection (Item 1): Party-nominated preferred, or Arbitration Institution nomination (or ranked method) preferred.
Include in Template 5 Cost Budget, Arbitrator selection: estimated of counsel time for each option and difference in impact of choice on time to constitute the Tribunal.
NOTE: An additional time consideration is arbitrator availability to respect timelines for decision. When selecting an arbitrator, parties should inquire not only about availability, but also:
– The number of cases in which the arbitrator is currently sitting
– Scheduled hearing dates for those cases
2. Timing of Complete Procedural Order and Procedural Timetable: Decide in One Step or Two?
Design and timing of the CMC(s) and initial PO(s) are best approached by applying the Lean principles of “just in time”, of “end to end process efficiency” and of “avoiding processing of which the output is not an input to a subsequent step.” [2]
LEAN consideration “just in time”: a Procedural Order 1 (PO1) including a complete Procedural timetable adopting standard default mode processes without question and without comprehensive inputs may not be “just in time”.[3] The PO1 may be decided too early to define tailor-made next steps, and can lead to inefficiencies and costly unnecessary steps, rather than determining just in time—at the right time—what steps are required, if at all, or to what extent. One could also say the first round of written submissions (Statement of Claim and Response) are too late in relation to structuring the PO1.
Proceedings could often be designed for improved efficiency if certain procedural issues are not decided at the first Case Management Conference (CMC) held shortly after the initial concise Notice of Arbitration and Response, but rather deferred to a second CMC. Certain matters in particular may be best addressed only after each party has submitted a full Statement of Claim / Statement of Defense, which include supporting documentary evidence and the first round of witness statements—allowing more informed decision making.
The need for following matters in particular may be best assessed and decided after the exchange of full Statements of Claim and Response:
i) Need for and potential scope (limitations on) document production
ii) Need for witness testimony at hearing, scope and potential duration
iii) Need for expert evidence at hearing, scope and potential duration
iv) Need for inspection
v) Duration of hearings
vi) Early issue determination / bifurcation
LEAN Consideration “process step output should be an input needed for subsequent step”: Decisions based on incomplete inputs regarding these matters can result in additional use of resources and costs to generate outputs of each step which are unnecessary for (and not used by) the Tribunal to deliberate and render an award.
LEAN Consideration “design the efficiency of the overall end-to-end process not the efficiency in isolation of any particular step.” A two-step CMC1/PO1 and CMC2/PO2 may appear superficially to be inefficient since there is an additional step, but doing so may render the entire beginning to end arbitration process more efficient by generating less process steps and less scope of process steps retained.
3 main possibilities:
1. Full Procedure Design at the first meeting: The first Case Management Conference (CMC) and PO1 deal with the entire procedure. May be appropriate in simple cases or in cases where fairly complete statements accompany the Notice of Arbitration and the Response.
2. Deferred Procedure Design: Most of the CMC agenda and PO1 are deferred until full written statements are exchanged after which a complete CMC deals with the entire procedure. May be appropriate if both parties seek speed and agree to make initial full statements quickly (and even simultaneously).
3. Two Stage Procedure Design: Two CMCs and two POs deal each with parts of the procedure—one CMC is held before exchange of full written statements and one is held after. CMC1 has a reduced agenda and decides on a reduced PO1 to include only the following necessary steps (for which no inputs are needed in addition to Notice of Arbitration and Response):
- CMC 1 and initial PO1 agenda
• Any urgent issues, e.g., possibly schedule submissions on jurisdictional challenges or interim measures to preserve evidence, or schedule inspections if urgent
• Decide whether or not Terms of Reference (TOR) are required and, if so, a submission deadline
• Fix schedule for any early issue determination or bifurcation if proposed (or defer to a second CMC2)
• Check availability of all for hearing in one or two proposed time frames
• Written submission parameters:
– Decide either memorial complete submissions or iterative pleading-type submissions
– Decide deadlines for the Statement of Claim and the Statement of Response plus counterclaims
– Decide whether a Reply and Rejoinder will be allowed
-possibly decide page limits for written submissions
In case the decision is to hold a second CMC2 to establish the PO2 and full procedural timetable, the following steps are those most likely deferred to CMC2 for decision:
- CMC 2 agenda:
• Fix schedule for any early issue determination or bifurcation if proposed (if not decided at CMC 1)
• Decisions on whether to allow document production, and if so, scope or limits
• Need for live witness testimony
• Need for expert witness testimony
• Decide whether tribunal expert or party’s experts
• Decide to schedule inspections, if any
• Decide on deadlines for expert reports
• Hearing duration
Include in Template 4 Procedural Steps (Item 2): Proposal for first CMC either:
Complete PO1 and procedural timetable in one-step,
or
a two-step CMC1 and CMC2, PO1 and PO2 (and procedural timetable in two parts).
Include in Template 4 Procedural steps (Item 2): For each CMC option, estimate the duration to accomplish and the estimated net impact on the time to award relative to the other option. Similarly, estimate the cost of each option and the estimated net impact on the costs of the total procedure through the award stage relative to the other option. Or note simply the net orientation–decrease or increase– in total procedure cost and total procedure duration relative to the other option.
3. Terms of Reference (TOR)
Take a position on TOR for your case (unless mandatory under applicable rules):
a) Terms of reference expected to be used by arbitrators as constraints in deciding procedural and substantive issues
OR
b) Terms of reference are nice to have but the parties are free to modify or add issues as the procedure progresses.
OR
c) Terms of reference are summarizing facts and issues which are included in the party’s written submissions and add no new information.
In case a), a TOR which is “binding” can contribute to efficiency; in case b) and case c) the work on a TOR generates costs with limited or no benefits.
LEAN consideration “process step output should be an input needed for subsequent step”: A TOR should be intended and expected to be used in a subsequent process step, i.e. used by arbitrators, or parties, in managing the procedure, or else is not adding value to the process.
If the Terms of Reference would be used by the arbitrators, for example, in deciding on document production requests and the time for witnesses at hearings, then this could contribute to efficiency. But if the Terms of Reference will not be relied upon in subsequent steps because the parties are free to add or modify issues at stake, or if the parties cannot agree on issues to be decided, then this is not a step of which the output will be used as an input to a subsequent procedural step and can be dispensed with.
LEAN Consideration “design the efficiency of the overall end-to-end process not the efficiency in isolation of any particular step”: If the Terms of Reference are justified only on the grounds that they allow the arbitrators to work more efficiently, this needs to be weighed against the extra work needed by counsel to produce or argue about the Terms of Reference.
Consider whether the cost of attempting to agree on the issues at stake in the TOR is worth pursuing, with the risk of not succeeding, and consider whether agreement on the list of issues in the TOR will generate savings in guiding subsequent process steps.
Include in Template 4 Process Steps (Item 3): Proposal for PO1 to include TOR (yes or no)
Include in Template 5 Cost Budget: estimated cost of TOR preparation (including negotiation with opposing party, submission of conflicting positions, if the case, to Tribunal for decision)
4. Written Submissions
a) Page Limits
LEAN Consideration “process step output should be an input needed for subsequent step”: Written submissions should be an input into the Tribunal deliberations and decision; arbitrators don’t need redundant submissions, and that excessively long submissions can distract attention from essential issues. Think right to left: for the next or ultimate processor (e.g. Tribunal), what is your most efficient output which can become an input the Tribunal uses? More is not necessarily better.
Criteria for page limits: As a function of the complexity of the case, what approximate number of pages would suffice to capture the arguments you believe are necessary in order for the Tribunal to understand the Main issues at stake and find your position convincing?
After submitting a proposal to the Tribunal for page limits, if the opposing party claims more pages are needed or no limits on pages are appropriate, request justification “ Why are more pages needed?” And possibly ask again in relation to the response if too abstract, “Why ?”
Include in Template 4 Process Steps (Item 4): Propose to include or not in PO1:
-Proposed page limits on Statement of Claim or Statement of Defense
-Proposed page limits for Reply and Rejoinder
(even if no page limits are proposed on Claim and Defense, consider proposing page limits on Reply and Rejoinder.)
-Estimated potential cost impact and potential time impact: with page limits, and without page limits.
b) Sequencing of Written Submissions
• Would simultaneous submission of briefs improve procedural efficiency, i.e. speed up the timetable?
• If not appropriate for the first round, could the reply and rejoinder be submitted simultaneously rather than sequentially to gain time?
Include in Template 4 Process Steps (Item 4): Propose to include in PO 1(or PO2):
-simultaneous exchange of Statement of Claim and Response (yes/no)
-simultaneous exchange of Reply and Rejoinder (yes/no)
Add in the column after each option, the potential duration and time impact (and net cost impact if relevant).
Include in Template 5 Cost Budget: The estimated counsel costs of a) opening written submissions as a function of proposed page limits and initial evidence (documents you possess in initial submission), and initial witness statements, if any (based on projected number and scope of witnesses), and b) reply/rejoinder including review and rebuttal of opposing party submissions (eventually a percentage of counsel cost for its party’s submissions)
5. Early Issue Determination / Bifurcation
LEAN Consideration “just in time”: Are there issues for which a decision only at the end is relatively “too late”—i.e. by deciding earlier, time and costs could have been saved, e.g. some procedural steps reduced (or settlement encouraged)?
For example, are there any issues which:
a) could be decided early, and
b) could be decided without all evidence being provided?
Such issues might consist of points of law or contract interpretation not requiring factual input (or relate to facts on which there is no dispute): e.g. statute of limitations, jurisdiction/arbitration agreement scope.
Consider also whether liability and relief/quantum could be split into two hearings at the end.
While timing considerations may dictate treating both issues simultaneously up until the hearing, a second hearing on relief/quantum could be scheduled say a month or two after the first hearing on liability, for the Tribunal to maintain or cancel if not needed.
Include in Template 4 Process Steps (Item 5): Propose for PO1 (or PO2), potential early decision/bifurcation issues, if any (or N.A.)
Include in columns:
• Estimated Cost to submit and argue proposal, obtain decision, and net cost impact (if win and if lose)
• Duration of time to submit and argue proposal, obtain decision, and net time impact (if win and if lose)
Notes:
i) Possible increase in costs if application rejected but may be small if the issue must in any event decided sooner or later: possible significant decrease in costs if granted.
ii) Time impact: increase may be limited if issue must be decided anyway sooner or later; time could be reduced if granted.
6. Witnesses
Based on Template 1 and 2:
Include in Template 4 (Item 6): Witnesses yes/no, and the estimated costs and cost and time impacts from Template 2.
Include in Template 5: TOTAL estimated costs from Template 2
7. Expert Evidence
a) Need for Experts: refer to conclusions of Template 3 Experts—is expert evidence necessary?
b) Needed Scope
LEAN Consideration: what inputs drive different outputs?
Experts with similar backgrounds would generally be expected to reach similar conclusions unless their premises are different, e.g. differing data sets or assumptions. Therefore identify these differences if possible, in order to project the scope of expert disagreements, and the length of needed expert reports. This may also serve to decide whether Tribunal needs to receive individual expert reports or only the joint report (see below), and to decide the time for testimony at the hearing (see below). Direct the experts to focus not mainly on divergent conclusions but on inputs which caused them to reach their divergent conclusions.
c) Party Experts vs. Tribunal Experts: In the case expert evidence is necessary, consider whether a tribunal-appointed expert or party-appointed experts is most efficient.
LEAN Consideration “design the efficiency of the overall end-to-end process not the efficiency in isolation of any particular step”: The Tribunal may believe its work is more efficient if it appoints the expert, but could the use of a Tribunal expert be making the overall process less efficient if each party works in private with its own expert? Does a tribunal expert represent a cost saving or rather an additional cost if each party also works with its own expert to feed and challenge the tribunal expert?
Include in Template 4 Process Steps (Item 7): Propose for PO1 (or PO2), Party-appointed experts preferred, OR Tribunal-appointed expert preferred.
Include in Template 5 Cost Budget: estimated cost of expert(s), both options.
Other options to consider:
d) Tribunal receives only Joint Report (and not individual reports): In the case of party experts, consider that a joint report identifying issues of agreement and disagreement be provided to the arbitrators, but that individual expert reports be provided only to the other party and its expert.
LEAN Consideration “process step output should be an input needed for subsequent step”: It may be inefficient and unnecessary for the Tribunal to consider the prior individual reports to the extent initial expert reports contain issues on which the experts ultimately agree, agreed issues are summarized in the final joint report, and the disagreements are to be presented in the joint report.
In other words, the individual reports would be inputs to the experts’ final joint report but would not be an input needed for the Tribunal’s deliberations.
In the case where the proposed sequence is:
-initial high level joint experts’ report
-individual expert reports
-final joint experts’ report
Consideration could also be given to share the initial high level joint experts’ report with the Tribunal to seek indication of issues the Tribunal wishes the experts to focus on.
e) Joint conferencing: In case of party-appointed experts, consider as well whether joint conferencing (“hot-tubbing”) be stipulated as the method of expert testimony to save hearing time and preparation time on individual presentations and cross-examination.
LEAN Consideration “process step output should be an input needed for subsequent step”: The responses to questions of the Tribunal are most likely inputs into the Tribunal’s deliberations.
Include in Template 4 Process steps (item 7): in the column after each option (c) through (e): potential time impact , net potential cost impact on the four issues:
-Expert vs No Expert
-Tribunal expert vs. parties’ experts;
-Tribunal receives only expert joint report vs. Tribunal also receives individual reports;
-Joint conferencing replaces some or all of party questioning of experts.
8. Document Production Requests
LEAN Consideration “process step output should be an input needed for subsequent step”: Request for Documents to be produced by the opposing party should be justified. The best justification is that the requesting party confirms its expectation to present the requested documents as key documents for the Tribunal’s deliberations and award.”
For example, the requested documents are intended to be included in a hearing “bundle”. More technically, the requested documents are intended as evidence of a fact necessary to determine an identified issue, which issue is necessary to decide in relation to parties’ claims. If not , the Request for Documents is not necessary—the Request would generate an output (receipt of documents) which does not become an input into the Tribunal’s deliberation.
If Document Production is retained by parties or the Tribunal, consider criteria for limits as follows:
A. LIMITS By Scope: Scope criteria for document request could be proposed for PO1/PO2 such as the following examples:[4]
i) Only documents which are specifically identified, or
ii) the requesting party’s justification is an expectation to rely on requested documents (in further submissions or at the hearing), in relation to an issue already identified in written submissions, or
iii) the requesting party’s justification is its best belief that the requested documents exist and contradict the other party’s fact allegation, or
iv) the requesting party’s justification is its best belief that the requested documents support an allegation it has made, but for which the requesting party has not fully documented its allegation, or
v) the IBA criteria for document requests strictly applied i.e.,
i) Only the other party possesses such documents, and
ii) The requested documents are material to the outcome of the case with reference to issues already raised in the party’s written submissions.
NOTE: If the documents ultimately produced are not used by the requesting party in its written submissions or at the hearing, this could be an indication that the document request may not have met the chosen criteria and was in fact “fishing”.
To introduce some discipline, whatever the criteria, a party(or the parties) could propose for the PO1/PO2 that arbitrators may take into account failure to use received documents at hearing in the award on costs.
B. LIMITS by Quantity
Consider proposing for the PO1/PO2 appropriate quantity limits to document requests, such as:
– a maximum number of requests,[5] or
-maximum number of documents,
– or other metric
C. LIMITS on Search Protocol to combine with scope criteria
Consider also proposing for the PO1/PO2 the search protocol (in relation to the limited scope only) for example:
-search protocol to be only requests to be made of limited key custodians (for example, persons submitting witness statements) to search their paper and electronic files, no e-discovery.
-search protocol to include e-discovery but only on key custodians and only directly in relation to facts where the parties have alleged contradictory facts (which are relevant per the scope criteria).
Include in Template 4 Process Steps (Item 8):
-No Document Production,
or
-If Document Production, the proposed limits in the comments column
and
-Costs for each option you propose on scope criteria, quantitative limits, and if e-discovery, the additional cost per search protocol definition. Include estimated total costs of formulating and justifying document production requests, disputes with opposing party and resolution of disputes.
(NOTE: Propose deadline in PO1 (or PO2) for submission to the Tribunal of document request disputes.)
Include in Template 5 Cost Budget: estimated total costs from Template 4.
9. Hearing Duration Scheduling & Cost
Refer to the scope needed for fact and expert witnesses– to testify only on issues where there is a Gap, i.e. documentary evidence is incomplete or unclear or contradictory. See Template 2 Witness Evidence, and Template 3 Expert Evidence for initial estimates of time needed for witnesses.
LEAN Consideration “process step output should be an input needed for subsequent step”: The problem to solve is not “how short (or long) can we make the hearing?” A better framing could be “How much hearing time is necessary to illustrate for the Tribunal the parties’ positions on facts or issues where the written submissions may not have sufficed?”
Include in Template 4 Process steps (Item 9): Formulate proposal for PO1/PO2 the hearing duration (in comments column) being mainly the duration of witnesses and expert testimony, if any. Use as inputs the estimated testimony time from Template 2 Witnesses and Template 3 Experts and add an equivalent estimate of time for opposing party’s Witnesses and Experts.
Include time impacts if any for the options: cross and redirect only; direct/cross/redirect; arbitrator questions; expert direct and cross, hot tubbing,
Include in Template 5 Cost Budget: estimated cost of hearing (include counsel, travel of all attendees, witnesses, hearing facilities, reporter/transcripts)
10. Mediation/Settlement Discussions
The inclusion of a possible pause in the initial PO1/PO2 schedule for mediation or settlement discussion as a “default” mode, subject to both parties’ willingness to pursue it at the designated time, may be more likely to facilitate mediation/settlement discussions, than to wait for one party to suggest such a pause after the process has advanced. Either party may be reluctant to be the initiator of consideration of mediation/settlement discussions for fear of showing weakness.
LEAN Consideration “just in time”: when is mediation “just in time” in your case? Earlier saves time and cost if successful, but later may have increased chance of success. A side benefit of mediation even if unsuccessful can be that the mediator’s communication of his or her perception of strengths and weaknesses focuses the parties on issues to concentrate on going forward up through the hearing. Additionally, the objectivity of a neutral’s perception may incite subsequent settlement discussions.
In a case where continuing commercial relations are expected whatever the outcome of the arbitration, an early mediation window may be timely and not too early.
In a complex case with no ongoing relation between the parties, too early might be before the parties have reassessed their risks through two full rounds of written submissions allowing all issues to have been engaged.
Include in Template 4 Process Steps (Item 10): Propose that PO1/PO2 include—or not—a one month (or different duration) pause for mediation/settlement discussion.
If yes, specify timing:
• After full statements of claim/response
Or
• After reply/rejoinder
Include in Template 4 Process Steps: Cost of Mediation and Additional time (delay to reaching award, if applicable)
Include in Template 5 Cost Budget: estimated cost of mediation, if held.
11. Pre-hearing Written Submissions
LEAN Consideration “process step output should be an input needed for subsequent step”: Does the nature of the case indicate that Pre-hearing briefs are necessary in order for the arbitrators to understand the hearing and reach a decision? Or would such briefs be redundant with prior written submissions?
In the latter case, they are not a necessary input into the Tribunal decision.
Include in Template 4 Process Steps (Item 11): Proposal for PO1 regarding Pre-hearing written submissions (none or allowed).
Fill out columns for estimated cost and time impact if allowed.
Include in Template 5 Cost Budget : same estimated cost if allowed.
12. Pre-hearing Conference Tribunal input
LEAN Consideration “process step output should be an input needed for subsequent step”: Having the Tribunal indicate at the Pre-Hearing Conference issues on which it wishes clarification or focus at the Hearing is likely to generate an output at the hearing—testimony on issues indicated by the Tribunal–which becomes an input into the Tribunal’s deliberations and award.
Include in Template 4 Process Steps (Item 12): Propose, or not, to include in PO1/PO2 the possibility for Tribunal to indicate issues on which it wishes clarification or focus at the hearing. If included, this should be at the Tribunal’s option to be confirmed as the date approaches.
13. Post-hearing Briefs (PHBs)
LEAN Consideration “process step output should be an input needed for subsequent step”: Does the nature of the case and anticipated witness testimony indicate that Post-hearing briefs (PHBs) are necessary in order for the arbitrators to understand the hearing and reach a decision?
For example, a heavy amount of witness evidence with contradictory witness statements or other complexities might justify PHBs.
On the other hand, would PHBs most likely be redundant with or mere summaries of prior written submissions?
There may be circumstances where a PHB could be allowed by tribunal decision after the hearing because. For example, the tribunal has questions about an element of the hearing, or a party’s position evolved during the hearing. In such case, the “just-in-time” moment to allow PHBs is at after the hearing.
Include in Template 4 Process Steps (Item 13): propose for PO1 one of the following or other options:
• No PHBs
• PHB content only to respond to arbitrator questions made at close or after the hearing, if any
• PHB content limited to discussion of witness testimony at hearing (+ page limits)
• PHB limited to discussion of witness testimony at hearing (+page limits) and response to arbitrator questions
• PHB content decided by counsel, no criteria (not a “Lean” approach)
Alternatively, if at the time of PO1 (or PO2), if the parties believe PHBs may prove to be necessary, the default mode for the Procedural Order could be no PHB subject to a final decision deferred until “just in time”, i.e. at the Pre-Hearing conference, at which time one of the above options could be implemented by decision of the Tribunal or if justified by the party or parties.
Include in Template 4 Process Steps (Item 13): estimates in the columns for Duration, Net Time impact and Cost, net Cost impact, per each option.
Include in Template 5 Cost Budget: estimated cost per low-cost and high-cost options.
C. TEMPLATE 5: COST BUDGET
Generate Template 5 Cost Budget with inputs on estimated cost for each process step to come from Template 4.
Whatever the total, company counsel may prudently add to its external cost budget a contingency e.g. of 20 to 30% in case the opposing party successfully resists some of the proposed efficient steps and extends many processes beyond your initial plan.
Companies may also wish to construct projected calendar (from selected options on Template 4) and cost budget for each step in relation to their internal costs and resources, including the time and cost of company internal counsel, of witnesses, and of other participants, e.g., technical, financial, and commercial personnel who will be asked to contribute to various steps.
In case of strict budgetary or time constraints, “design to cost” and “design to time” concepts can also be applied to determine scope of the various steps.
Patrick Noonan
September 17, 2026
[1] Part B then focuses on the procedural steps needed to efficiently reach an award, while maintaining quality and due process.
[2] See the “Introduction and Overview” Document for more explanation.
[3] “Just in time” means neither too late nor too early.
[4] For a detailed discussion of possible criteria, see “Taming the Beast” A Whitepaper on Document Production (Swiss Arbitration Association).
[5] NOTE: if a maximum number of requests is to be proposed, an idea of the limit on the number of requests to be proposed could possibly be derived from the Template 1 column “Gaps in Proof Based on Available Documents”. The number of issues for which there is a gap in available documents could be the used as the number of allowed requests.
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