But what if the contract is silent? Perhaps, as is often the case, the parties identified mandatory arbitration, the applicable forum, and rules, but neglected to mention the discovery. If the treaty on this subject is silent, I always focus on the agreement of the party. Have the parties met and have they agreed orally and orally on the investigative parameters they wish to follow in the arbitration? If so, my role as an arbitrator is to apply the parties` discovery agreement fairly and objectively. If not, maybe with my nudging, they will make a discovery plan. Instead of a "mission," I give the parties time to meet with me and develop a reasonable and inexpensive identification plan. First Republic terminated Peng`s employment and sued First Republic for racial and sexual discrimination, retaliation and unlawful reporting. First Republic asked the court to force arbitration on the basis of the agreement. The Tribunal rejected the application and found that the First Republic`s non-compliance with THE AAA rules and the unilateral provision for amending the agreement made it unacceptable. First Republic appealed. When deciding on the application of an arbitration agreement, California courts check whether its conditions are procedurally and materially unacceptable. A slippery scale is used to judge procedural nenupritism in relation to material impitoyability: the more substantially repressed the duration of the contract, the less evidence of procedural inadmissibility is required to conclude that the term is unenforceable, and vice versa. Armendariz v.
Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 114 (Cal. 2000). Discovery in arbitration, like arbitration itself, begins with the parties` agreement. The concept of basic arbitration was adopted by parties who anticipated potential problems and identified arbitration as their dispute resolution process. That is why, like most arbitrators, I first look at the contract of the parties to advise me. If the parties have indicated the nature and quantity of the discovery authorized in the compromise clause, then the controls of the contract. As an arbitrator, it is then up to me to apply the agreement of the parties fairly and objectively, not to overlay what I prefer or what a party now wants them to have included in the contract. We are also looking at the existing arbitration rules.
If the arbitration clause provides for the rules of a particular forum, we will, if necessary, comply with the rules. Many arbitrators for one have a list of documents likely to find, depending on the type of arbitration. For example, the American Arbitration Association (AAA) maintains its initial protocols for employment arbitration, which lists both the required production and the recommended parameters. Similarly, the Financial Industry Regulatory Authority (FINRA) has a "Research Guide" that contains a list of documents provisionally produced for reciprocal exchanges between the parties in all their consumer cases. As a general rule, the arbitrator and/or parties can change these guidelines, but the rules of the chosen forum are an excellent starting point and an excellent resource.