Arbitration

83.7-1 Scope and Effectiveness of Rule This Rule governs the consensual arbitration program for referral of civil actions to court-annexed arbitration. It may remain in effect until further order of the Court. Its purpose is to establish a less formal procedure for the just, efficient and economical resolution of disputes, while preserving the right to a full trial [Table of Contents] 65 [X: ADR & General Provisions] on demand. 83.7-2 Actions Subject to this Rule The Clerk shall notify the parties in all civil cases, except as the Rules otherwise direct, that they may consent to non-binding arbitration under this Rule.

The notice shall be furnished to the parties at pretrial/scheduling conferences or shall be included with pretrial conference notices and instructions. Consent to arbitration under this Rule shall be discussed at the pretrial/scheduling conference. No party or attorney shall be prejudiced for refusing to participate in arbitration. The Court shall allow the referral of any civil action pending before it to the arbitration process if the parties consent.

The plaintiff shall be responsible for securing the execution of a consent form by the parties and for filing the form with the Clerk within fourteen (14) days after the parties receive the form. The parties shall freely and knowingly enter into the consent. 83.7-3 Referral to Arbitration (a) Time for Referral. The Clerk shall refer every action subject to this Rule to arbitration in accordance with the procedures under this Rule twenty-one (21) days after the filing of the last responsive pleading or within twenty-one (21) days of the filing of a stipulated consent order referring the action to arbitration, whichever event occurs last, except as otherwise provided.

If any party notices a motion to dismiss under the provisions of Fed. R. Civ. P. 12(a) and/or (b), or a motion to join necessary parties pursuant to the Federal Rules of Civil Procedure prior to the expiration of the twenty-one (21) day period, the assigned judge shall hear the motion and further proceedings under this Rule shall be deferred pending decision on the motion. If the Court does not dismiss the action on the motion, the Court shall refer the action to arbitration twenty-one (21) days after the filing of the decision. Motions for summary judgment pursuant to Fed. R. Civ. P. 56 shall be filed and served within twenty-one (21) days following the close of discovery. The filing of a Rule 56 motion shall defer further proceedings under this Rule pending decision on the motion.

(b) Authority of Assigned Judge. Notwithstanding any provision of this Rule, the Clerk shall assign every action subject to this Rule to a judge upon filing in the normal course, in accordance with the Court's Assignment Plan. The assigned judge shall have authority to conduct status and settlement conferences, hear motions and in all other respects supervise the action in accordance with these Rules notwithstanding its referral by consent to arbitration. (c) Relief from Referral.

Any party shall request relief from the operation of this Rule by filing with the Court a motion for the relief within twenty-one (21) days after entry of the initial stipulated consent order which refers the case for arbitration. The assigned judge shall, sua sponte, exempt an action from the application of this Rule where the objectives of arbitration would not be realized because (1) the case involves complex or novel legal issues, (2) legal issues predominate over factual issues, or (3) for other good cause. 83.7-4 Selection and Compensation of Arbitrator (a) Selection of Arbitrators. The Clerk shall maintain a roster of arbitrators qualified to hear and determine actions under this Rule.

The Court shall select arbitrators from time to time from applications submitted by or on behalf of attorneys willing to serve. To be eligible for selection, an attorney (1) shall have been admitted to practice for not less than five (5) years; (2) shall be a member of the bar of this Court or a [Table of Contents] 66 [X: ADR & General Provisions] member of the New York bar and reside within the Northern District of New York; and (3) shall either (i) for not less than five (5) years have devoted 50% or more of the attorney's professional time to matters involving litigation, or (ii) have substantial experience serving as a “neutral” in dispute resolution proceedings, or (iii) have substantial experience negotiating consensual resolutions to complex problems. Each attorney shall, upon selection, take the oath or affirmation prescribed in 28 U.S.C. § 453 and shall complete any training that the Court requires. (b) Selection of the Panel.

Whenever an action has been referred to arbitration through consent of the parties pursuant to this Rule, the parties shall nominate the arbitrator or arbitrators whom they select to serve as an arbitrator(s) in full compliance with L.R. 83.7-4(a), or the Clerk shall promptly furnish to each party a list of arbitrators whose names shall have been drawn at random from the roster for the division in which the case is pending. If the parties have elected to proceed with a single arbitrator, the Clerk shall provide five (5) names for the selection process. If the parties have elected to proceed with a panel of three (3) arbitrators, the Clerk shall provide seven (7) names for the selection process. 1.

Each side shall be entitled to strike two names from the list. All parties shall sign the list and return it to the Clerk within fourteen (14) days of receipt. Failure of the parties to timely notify the Clerk of strikes shall result in the Clerk's selection of the panel. 2.

The Clerk shall promptly notify the person or persons whom the parties did not strike. If the parties have elected to proceed with a single arbitrator, and the arbitrator selected is unable or unwilling to serve, the process of selection under this Rule shall begin anew. If the parties have elected to proceed with a panel of arbitrators and any person whom they select is unable or unwilling to serve, the Clerk shall select an additional individual at random who shall constitute the third member of the panel. If the Clerk is still unable to form a panel of three arbitrators for any reason, the process of selection under this Rule shall begin anew.

When a single arbitrator, or when three of the selected arbitrators have agreed to serve, the Clerk shall promptly send written notice of the membership of the panel to each arbitrator and the parties. (c) Disqualification. No person shall serve as an arbitrator in an action in which any of the circumstances specified in 28 U.S.C. § 455 (conflict of interest) exist or in good faith shall be believed to exist. (d) Withdrawal by Arbitrator.

Any person whose name appears on the roster maintained in the Clerk's office may ask at any time to have his or her name removed or, if selected to serve on a panel, decline to serve but remain on the roster. (e) Compensation and Reimbursement. Arbitrators shall be paid $250.00 per day or portion of each day of hearing in which they participate serving as a single arbitrator or $100.00 for each day or portion of a day if serving as a member of a panel of three (3). Compensation for an arbitrator's services outside of the hearing shall be supported by an affidavit setting forth in detail the time required for pre- and post-hearing matters.

When the arbitrators file their decision, each shall submit a voucher, on the form that the Clerk prescribes, for payment by the Administrative Office of the United States Courts of compensation and out-of- pocket expenses necessarily incurred in the performance of their duties under this Rule. No reimbursement shall be made for the cost of office or other space for the hearing. [Table of Contents] 67 [X: ADR & General Provisions] 83.7-5 Arbitration Hearings (a) Hearing date. After an answer is filed in a case in which the parties have consented to arbitration and the Court has approved the consent and on completion of the parties' selection of the panel, the arbitration clerk shall send a notice to the attorneys setting forth the date, time and location for the arbitration hearing. The date of the arbitration hearing set forth in the notice shall be approximately five (5) months, but in no event later than 180 days, from the date the answer was filed, except that the arbitration proceeding shall not, in the absence of the parties’ consent, commence until thirty (30) days after the Court's disposition of any motion to dismiss the complaint, motion for judgment on the pleadings, or motion to join necessary parties if such a motion was filed and served within twenty-one (21) days after the filing of the last responsive pleading.

Motions for summary judgment pursuant to Fed. R. Civ. P. 56 shall be filed in accordance with L.R. 83.7-3(a). The Court may modify the 180-day and twenty-one (21) day periods specified in L.R. 83.7 for good cause shown. The notice shall also advise the attorneys that they may agree to an earlier date for the arbitration hearing provided the arbitration clerk is notified within thirty (30) days of the date of the notice. The notice shall also advise the attorneys that they have 120 days to complete discovery unless the Court orders a shorter or longer period for discovery.

If a third party has been brought into the action, this notice shall not be sent until the third party has filed an answer. (b) Upon entry of the order designating the arbitrator(s), the arbitration clerk shall send to each arbitrator a copy of the order designating the arbitrator, a copy of the court docket sheet and a copy of the guidelines for arbitrators. On receipt of the notice scheduling the case to proceed to arbitration and appointing an arbitrator, the plaintiff's attorney shall promptly forward to the arbitrator copies of all pleadings, including any counterclaim or third-party complaint and respective answer. Thereafter, and at least ten (10) days prior to the arbitration hearing, each attorney shall deliver to the arbitrator(s) and to the adverse attorney pre-marked copies of all exhibits, including expert reports and all portions of depositions and interrogatories to which reference shall be made at the hearing (but not including documents intended solely for impeachment).

(c) Default of a Party. The arbitration hearing shall proceed in the absence of any party who, after notice, fails to be present. If a party fails to participate in the arbitration process in a meaningful manner, the arbitrator(s) shall make that determination and shall support it with specific written findings filed with the Clerk. The Court shall then conduct a hearing, on notice to all attorneys and personal notice to any party adversely affected by the arbitrator's determination, and may impose any appropriate sanctions, including, but not limited to, the striking of any demand for a trial de novo which that party has filed.

(d) Conduct of Hearing. The arbitrator is authorized to administer oaths and affirmations and all testimony shall be given under oath or affirmation. Each party shall have the right to cross-examine witnesses, except as otherwise provided. In receiving evidence, the arbitrator shall be guided by the Federal Rules of Evidence.

These rules, however, shall not preclude the arbitrator from receiving evidence that the arbitrator considers to be relevant and trustworthy and that is not privileged. A party desiring to offer a document, otherwise subject to hearsay objections, at the hearing shall serve a copy on the adverse party not less than ten (10) days in advance of the hearing, indicating intent to offer it as an exhibit. Unless the adverse party gives written notice in advance of the hearing of intent to cross-examine the author of the document, the arbitrator shall deem that the adverse party has waived any hearsay objection to the document. Attendance of witnesses and production of documents shall be compelled in accordance with Fed. R. Civ. P. 45.

(e) Transcript or Recording. A party may cause a transcript or recording to be made of the [Table of Contents] 68 [X: ADR & General Provisions] proceedings at its expense but shall, at the request of the opposing party, make a copy available to that party at no charge, unless the parties have otherwise agreed. Except as provided in L.R. 83.7-7(c), no transcript of the proceeding shall be admissible in evidence at any subsequent de novo trial of the action. (f) Place of Hearing.

Hearings shall be held at any location within the Northern District of New York that the arbitrator(s) designates. Hearings may be held in any courtroom or other room in any federal courthouse that the Clerk makes available to the arbitrator(s). When no room is available, the hearing shall be held at any suitable location that the arbitrator(s) selects. In selecting a hearing location, the arbitrator shall consider the convenience of the panel, the parties and the witnesses.

The date for the hearing shall not be continued except for extreme and unanticipated emergencies. (g) Time of Hearing. Unless the parties agree otherwise, hearings shall be held during normal business hours. (h) Authority of Arbitrator.

The arbitrator(s) shall be authorized to make reasonable rules and issue orders necessary for the fair and efficient conduct of the hearing before the arbitrator(s). Any two members of a panel shall constitute a quorum; but, unless the parties stipulate otherwise, the concurrence of a majority of the entire panel shall be required for any action or decision. (i) Ex Parte Communication. There shall be no ex parte communication between an arbitrator(s) and any attorney or party on any matter related to the action except for purposes of scheduling or continuing the hearing.

83.7-6 Award and Judgment (Amended January 1, 2012) (a) Filing of Award. The arbitrator(s) shall file the award with the Clerk promptly following the close of the hearing and in any event not more than fourteen (14) days following the close of the hearing. As soon as the arbitrator(s) files the award, the Clerk shall serve copies on the parties. (b) Form of Award.

The award shall state clearly and concisely the name or names of the prevailing party or parties, the party or parties against which the award is rendered, and the precise amount of money and other relief, if any, awarded. The award shall be in writing; and, unless the parties stipulate otherwise, the arbitrator or at least two members of a panel must sign the award. No panel member shall participate in the award without having attended the hearing. (c) Entry of Judgment on Award.

Unless a party has filed a demand for a trial de novo (or a notice of appeal which shall be treated as a demand for trial de novo) within thirty (30) days of the filing of the arbitration award, the Clerk shall enter judgment on the arbitration award in accordance with Fed. R. Civ. P. 58. A judgment so entered shall be subject to the same provisions of law and shall have the same force and effect as a judgment of the Court in a civil action, except that the judgment shall not be subject to review in any other court by appeal or otherwise. (d) Sealing of Arbitration Awards. The contents of any arbitration award made under this Rule shall not be made known to any judicial officer who might be assigned to the case until the Court has entered final judgment on the action or the action has otherwise terminated. [Table of Contents] 69 [X: ADR & General Provisions] 83.7-7 Trial De Novo (a) Time for Demand.

If either party files and serves a written demand for a trial de novo within thirty (30) days of entry of judgment on the award, the Clerk shall immediately vacate the judgment and the action shall proceed in the normal manner before the assigned judge. (b) Restoration to Court Docket. On a demand for a trial de novo, the Clerk shall restore the action to the Court's docket, trial ready, and the action shall be treated for all purposes as if it had not been referred to arbitration. In such a case, any right of trial by jury that a party otherwise would have had, as well as any place on the Court calendar which is no later than that which a party otherwise would have had, is preserved.

(c) Limitation on Admission of Evidence. At the trial de novo, the Court shall not admit any evidence that an arbitration proceeding has occurred, the nature or amount of any award, or any other matter concerning the conduct of the arbitration proceeding unless 1. 2. The evidence would otherwise be admissible in the Court under the Federal Rules of Evidence; or The parties have stipulated otherwise.

(d) Arbitrator's Costs. The party requesting a trial de novo shall deposit the cost of the arbitrator's services as a prerequisite to the trial. If the requesting party fails to obtain judgment in an amount which, exclusive of interest and costs, is more favorable to that party, the Clerk shall retain those funds. However, if that party is successful in obtaining a more favorable result, the Clerk shall return the prepaid costs to the party who deposited them.

(e) Opposing Party's Costs. If a party has rejected an award and the action proceeds to trial, that party shall pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the arbitrator's award on that claim. If the opposing party has also rejected that award, however, a party is entitled to costs only if the verdict is more favorable to that party than the arbitrator's award. Actual costs include those costs and fees taxable in any civil action and attorney’s fees for each day 1. of trial not to exceed $500.00.

2. For good cause shown, the Court shall order relief from payment of any or all costs. The provisions of L.R. 83.7-7(d) and (e) shall not apply to claims to which the United States or one 3. of its agencies is a party. 83.7-8 Cases Pending Prior to the Implementation of Arbitration Notwithstanding the provisions of the Rules set forth above, each district judge shall select cases from the docket currently in process and notify the attorneys involved of the availability of the consensual arbitration program.

A case shall qualify for referral to arbitration if it complies with the provisions of this Rule. [Table of Contents] 70 [X: ADR & General Provisions]