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Harold
D. Caplener
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1. OBJECTIVE. Arbitrator Caplener's goal is to impartially resolve disputes in compliance with applicable law in the fastest, fairest, and most cost-effective manner that circumstances reasonably permit. Recognizing that complex cases may require multiple preliminary telephone conferences, every effort will be made to resolve the dispute with a single preliminary telephone conference followed by a hearing on the merits. A written arbitration award will be issued promptly after all admitted evidence has been duly considered by the arbitrator. [top] [home]
2. GENERAL PROCESS. The arbitration process begins when any party to a dispute makes a request to an arbitrator to resolve the dispute by arbitration. A party may make the request by telephone, facsimile, mail, or e-mail. The requesting party is the complainant. The responding party is the respondent. The respondent may also seek relief against the complainant or other parties in the form of a counterclaim. There may be multiple parties to an arbitration proceeding. There shall be no ex-parte communications with the arbitrator. Scheduling for all hearings, whether or not preliminary, shall be with the administrator or with the arbitrator at a hearing when all parties are present. Hearings may be by teleconference or in person. The arbitrator will issue appropriate orders from time to time to resolve issues during the arbitration process. Upon receiving evidence at the hearing, the arbitrator will promptly issue an award after due consideration of all evidence admitted at the hearing.
The arbitrator and administrator shall maintain the confidentiality of all matters brought to their attention during the pendency of an arbitration unless all parties or a court of competent jurisdiction direct otherwise in writing. [Top][home]
3. JURISDICTION. Jurisdiction of the arbitrator is conferred on the arbitrator by the parties and by applicable law. The arbitrator shall have the power to determine whether or not the arbitrator has jurisdiction to rule on any issue. The arbitrator shall have the power to rule whether or not the arbitrator has jurisdiction to rule on any other issue brought to the arbitrator's attention by the parties or by the arbitrator, sua sponte. All objections to the jurisdiction of the arbitrator on any issue shall be submitted and filed no later than 20 days prior to the earliest calendared date for hearing on the merits. Failure to timely object shall constitute a waiver of the right to later object to the jurisdiction of the arbitrator.
At all times, the arbitrator reserves the right to issue orders deemed necessary in the arbitrator's discretion, to accomplish an impartial resolution of the dispute in the fastest, fairest, and most cost-effective manner that circumstances reasonably permit. [Top][home]
4. APPLICATION OF RULES. Arbitration processes require rules for the orderly and prompt resolution of disputes between parties. The choice of rules is left to agreement or contract between the parties. The arbitrator is familiar with the commercial arbitration rules of the American Arbitration Association, the Caplener Rules, and various rules used by other tribunals. The arbitrator will apply rules as requested or required by the parties. [Top][home]
5. AUTHORITY OF ARBITRATOR. The authority and power of the arbitrator is that conferred by law and by the parties. [Top][home]
6. NUMBER OF ARBITRATORS. The number of arbitrators shall be determined by the parties or by contract between the parties. Mr. Caplener is available to serve on one and three person arbitration panels. Mr. Caplener and the administrative personnel do not provide a list of additional candidate arbitrators. [Top][home]
7. SCOPE OF RULES. The rules are to be used only for resolution of a dispute by arbitration. All parties shall agree in writing on or before the first preliminary telephone conference that a specific set of arbitration rules is to be used during the resolution process. Examples are the AAA Rules or the Caplener Rules. Violation of the agreed upon rules may be considered by the arbitrator during the pendency of the arbitration process and during the arbitrator's deliberation process. The arbitrator may issue interim orders addressing alleged violations of the rules, but the arbitrator does not have the power to hold any party in contempt or to impose fines or monetary sanction as such power rests with a court of competent jurisdiction. [Top][home]
8. FILING FEES AND CHARGES. Each complaint, counterclaim, amended pleading, and amendment to pleadings requires payment of a filing fee of $ 450.00 U.S. to the administrator at the time such documents are submitted for filing with the administrator/arbitrator. There is no filing fee for the initial answer. Each filing fee, except a continuance filing fee, provides for administrative personnel to open the case file, schedule one preliminary telephone conference, schedule and arrange for the hearing on the merits, and notify parties and the arbitrator of required matters during the arbitration process. Each additional preliminary telephone conference requested by a party shall require a filing fee of $ 150.00 U.S.
The recovery of filing fees by a party shall be left to agreement of the parties or by resolution of the arbitrator as provided by law. Each request by a party for a continuance of a hearing or preliminary hearing shall require payment of an additional filing fee of $ 150.00 U.S. by the requesting party unless excused by the arbitrator for cause. For purposes of this paragraph, cause shall include the submission of a written request reciting facts showing a medical or health need for the continuance. The recitation of facts shall be under oath or declaration under penalty of perjury.
Filing fees do not include hearing room charges. If the parties require the administrator to arrange for hearing rooms, all room rental charges shall be deposited with the administrator in advance.
All filing fees are nonrefundable. Unused charges are refundable. [Top][home]
9. ARBITRATOR'S COMPENSATION AND EXPENSES. Mr. Caplener shall be entitled to compensation for his professional arbitration services and reimbursement of expenses as set forth in his fee and expense schedule. At the request of the administrator and prior to the initial preliminary telephone hearing, each party shall submit to the administrator one-half of the estimated fees and expenses needed to bring the matter through one preliminary telephone hearing, hearing, and award. The administrator shall inform the parties of the amount of estimated time, fees, and expenses. From time to time, the administrator may require additional compensation and expense deposits. Failure to deposit requested amounts shall be grounds for taking all pending matters off calendar, suspension or dismissal of case, or case closure without award. If any party fails to deposit requested fees and charges, any other party may deposit the requested amounts. The award shall specify the party or parties upon whom the responsibility for the arbitrator's fees shall rest in accordance with the agreement among the parties or as required by law. Upon issuance of an award, or earlier and from time to time in cases with more than one preliminary telephone conference, the arbitrator may submit a statement for services rendered to the administrator. The administrator shall promptly pay to the arbitrator the statement amount. Upon issuance of an award and after payment of all arbitrator's fees, the administrator shall return to the proper party or parties all estimated and unearned fees, charges, and expenses . To request a schedule of Mr. Caplener's fees, click here. [Top][home]
10. ADMINISTRATOR. Please direct all Administrative matter communications to:
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Administrator Contact: |
Arbitration Administrator |
The administrator shall be the primary contact between the parties and the arbitrator. The administrator shall receive all filing fees, arbitrator's compensation deposits, pleadings, motion papers, correspondence, and other communications directed to the arbitrator during the arbitration process. The administrator shall attempt to schedule preliminary telephone hearings and the hearing on dates and times convenient to the parties and their attorneys of record. All requests to set matters for hearing shall be directed to the administrator. All ex parte requests shall be directed to the administrator. The administrator shall not be responsible for service of papers from one party to another. Service upon the administrator shall constitute service upon the arbitrator. However, Mr. Caplener prefers that service of all papers, other than discovery papers and documents and proposed hearing exhibits, also be made simultaneously and directly on Mr. Caplener via facsimile, e-mail, personal or electronic delivery, or U.S. mail as the parties and arbitrator may agree. [Top][home]
Upon commencement of a case, the administrator shall perform a conflicts check in an effort to determine whether the administrator has any conflicts or potential conflicts of interest. As the case progresses towards resolution, Mr. Caplener and administrative support personnel shall continue to monitor for actual and potential conflicts of interest. If any are known or discovered during the pendency of the case, the administrator shall promptly notify the arbitrator and the parties.
The designation of the administrator shall be in the sole discretion of the arbitrator. The arbitrator reserves the right to change administrators, from time to time, in the sole discretion of the arbitrator. [Top][home]
11. COMMUNICATIONS WITH ARBITRATOR. Except in an emergency, there shall be no ex parte communications with the arbitrator by any party or the party's counsel. An emergency is defined as an unexpected and unforeseen health or medical need of a party or attorney of record. In an emergency, the parties and the arbitrator may directly communicate with each other, but such communications shall be limited to scheduling and calendaring purposes only. All other communications with the arbitrator shall be through the administrator, or as agreed among the parties and the arbitrator. [Top][home]
12. DEFAULTS AND NON-APPEARANCES. If a party fails to appear at a duly scheduled preliminary telephone conference or hearing, the arbitrator may continue the matter to another date with notice to the parties, or award the relief and damages requested by the moving party or parties. The arbitrator may award the requested relief and damages against a non-appearing party only upon presentation of evidence satisfactory to the arbitrator that the requested relief and damages should be granted. [Top][home]
13. SETTLEMENT DISCUSSIONS . There shall be no discussions or communications with the arbitrator at any time with respect to settlement attempts or discussions unless a complete written settlement has been reached among all parties. Should the parties settle the case negating the need for arbitration, the parties shall forthwith notify the administrator in writing that the matter has been settled and there is no further need for arbitration. [Top][home]
14. STENOGRAPHER. Any party may provide, at the expense of the party, a stenographer or videographer at the hearing with at least 20 days written notice to all parties and the arbitrator prior to the hearing. The arbitrator may apportion the expense of the stenographer or videographer between the parties in accordance with an agreement between the parties or in resolution of the dispute as set forth in the award. [Top][home]
15. NO GIFTS. No party shall provide any gift to the arbitrator or administrative personnel in any form whether monetary or otherwise. [Top][home]
16. AMENDMENTS TO RULES. Mr. Caplener reserves the right to amend these rules from time to time to improve the arbitration dispute resolution process. The parties and the arbitrator to any case in progress shall comply with the rules in effect at the commencement of the arbitration or as may be amended by written agreement of all parties and the arbitrator. [Top][home]
17. CLAIM INITIATION - COMPLAINT. An arbitration case is commenced by the payment of filing fees to the administrator and the filing and service of a complaint. The complaint should identify the parties to the disputes, contain a brief statement of facts giving rise to the complaint, and specify the relief and damages requested. The complaint must be served on the party or parties from whom the relief and damages are being requested. [Top][home]
18. ANSWER. The party against whom a complaint has been filed shall have 30 days from the service of the complaint upon the party to file and serve an answer to the complaint. The answer shall set forth any admissions, denials, and affirmative defenses to the complaint. If a party required to file and serve an answer to the complaint fails to do so, the relief and damages requested in the complaint may be awarded against the failing party upon presentation of evidence satisfactory to the arbitrator. [Top][home]
19. ADDITIONAL PLEADINGS. The party filing an answer may, at the time the answer is filed, file and serve a counterclaim against the complaining party or a third party. If a counterclaim is filed, filing fees shall be paid as required in these rules. A party shall file and serve an answer to a counterclaim within 30 days of service of the counterclaim on the party. [Top][home]
20. BIFURCATION. Bifurcation of issues for hearing on the merits shall not be permitted absent a showing of cause and an arbitrator's order granting bifurcation. [Top][home]
21. INITIAL TELEPHONE CONFERENCE. Each party shall file and serve a letter brief 5 calendar days prior to the initial telephone conference. The letter brief shall contain: the applicable law if choice of law is in dispute, an estimate of the number of additional telephone conference hearings needed if any, the cutoff date to amend pleadings, an estimate of time needed for hearing on the merits, the dates available by the parties and counsel for the hearing, the number of witnesses to be called at the hearing, the hearing locale, whether a stenographer or videographer is needed, discovery issues if any, discovery cutoff date if applicable, the date to exchange witness and expert witness lists including expected testimony, the date to file a joint statement of undisputed facts if any, scheduling of law and motion matters if any, law and motion cutoff date, the date to exchange and file hearing briefs, and whether the award is to be simple or reasoned. If no request is received by the arbitrator from a party by the time of the initial telephone conference for a reasoned award, the arbitrator shall issue a simple award as hereinafter described. The arbitrator shall promptly issue an order following the telephone conference addressing the matters discussed at the telephone conference. To the extent practicable and fair, the arbitrator shall attempt to bring the dispute to resolution with a single preliminary telephone conference followed by a separate hearing on the merits. [Top][home]
22. ADDITIONAL PHONE CONFERENCES. Any party may arrange additional preliminary telephone conferences by contacting the administrator and paying the requisite filing fees and charges (if applicable). Each party shall file and serve a letter brief 5 business days prior to each telephone conference. The letter brief shall contain a brief description of the matters to be discussed at the conference and the arguments in support of the party's position. [Top][home]
23. CONTINUANCES. Continuances are not favored. A party may request a continuance for any matter upon written motion filed and served on all parties. The motion shall require payment of the filing fee specified in the rules and shall not be granted unless there is a showing of good cause. The arbitrator, sua sponte, may continue any matter upon notice to the parties. [Top][home]
24. DISCOVERY. Discovery by any party shall not be permitted except as agreed by all parties or as authorized by law. [Top][home]
25. LAW AND MOTION. Any party, through the administrator, may schedule a law and motion matter before the arbitrator upon the payment of the required filing fees and charges (if any). The moving party shall file and serve a written letter brief in support of its motion. The responding party shall file and serve a written letter opposition brief addressing only those matters raised in the moving letter brief. The moving party shall file and serve a written reply brief addressing only those matters raised in the opposition brief. To the extent possible, the parties shall agree in advance for the dates to file and serve the letter briefs. All letter briefs shall be served upon the arbitrator no later than 4 business days prior to any preliminary telephone conference on the motion. No law and motion matter may be filed and served after the law and motion cutoff date without a showing of good cause. [Top][home]
26. CHANGES IN CLAIMS, DEFENSES. Changes to pleadings shall be subject to approval by the arbitrator and shall require an additional filing fee. No party shall change any claim or defense in its pleading after the cutoff date to amend pleadings. [Top][home]
27. FILE AND SERVE. File refers to the delivery of all filing fees and charges (if any), administrative fees, papers, pleadings, documents, briefs and other written documentation (collectively Documentation) on the administrator. Serve refers to the delivery of all Documentation on all parties, administrator, and arbitrator. Service on the parties and arbitrator may be accomplished by delivery by special courier, U.S. Mail, facsimile, or electronic mail to the parties' and arbitrator's address of record. The parties may change their address of record upon proper notice. [Top][home]
28. SUBPOENAS. Upon proper request by a party, the arbitrator may issue a subpoena to command a witness to attend the hearing and to bring documents to the hearing. Upon proper request and notice to all parties duly filed and served, the arbitrator may issue a third party subpoena for discovery matters as permitted by the rules of the case or by law. [Top][home]
29. LAY WITNESSES. Any party may call a lay witness if permitted by the rules of the case or by law. [Top][home]
30. EXPERT WITNESSES. Any party may call an expert witness if permitted by the rules of the case or by law. [Top][home]
31. EVIDENCE. Conformance to the strict rules of evidence shall not be required except for matters related to privilege. The parties should keep in mind that the arbitrator is interested in credible persuasive evidence relevant to the issues to be decided. All admitted evidence shall be given the weight to which it is entitled. [Top][home]
32. PRE-HEARING DISPUTES. Pre-hearing issues properly brought before the arbitrator shall result in a written order resolving the issues. [Top][home]
33. CONTINUANCES. Continuances are not favored. A party may request a continuance of the hearing upon written motion filed and served on all parties. The motion shall require payment of the filing fee specified in the rules and shall not be granted unless there is a showing of good cause. The arbitrator, sua sponte, may continue any matter upon notice to the parties. [Top][home]
34. VENUE. Venue shall be determined by agreement or contract among the parties, subject to approval by the arbitrator. Every effort shall be made by the parties to agree to venue at the initial telephone conference. [Top][home]
35. REQUIRED ATTENDANCE. Each party shall the attend the hearing, including its attorney of record, if any. Subpoenas, upon proper application, may be available to compel the attendance of nonparty witnesses. [Top][home]
36. OATHS. The arbitrator shall administrator an oath or affirmation for each witness prior to his or her testimony at the hearing. [Top][home]
37. NON-APPEARING PARTY OR WITNESS. Failure of a party to attend the hearing may constitute grounds for entry of default against the non-appearing party and an award of damages against the non-appearing party. Failure of a duly subpoenaed third party witness to the attend the hearing may constitute good cause for continuance of the hearing upon a proper request and showing. [Top][home]
38. HEARING PROCEDURE. At the commencement of the hearing, the arbitrator may ask for a brief opening statement from each party. The complainant shall begin first followed by each responding party. [Top][home]
The complainant shall next call its witnesses in the order it deems appropriate, subject to approval of the arbitrator. Upon completion of each witness, each responding party shall be given an opportunity to cross-examine each witness. The complainant may next examine each cross-examined witness on rebuttal. Each cross and rebuttal examination shall be limited to the subject mater from the just completed examination of the witness. During the examination process, each party may introduce documentary and other evidence. [Top][home]
Upon completion of the complainant's case in chief, each responding party may call witnesses and introduce documentary and other evidence. Cross examination and rebuttal examination may occur in a manner similar to that of the complainant's case in chief. [Top][home]
After each party has rested, the complainant may provide a brief closing argument. Each responding party may provide a brief closing argument. The complainant may be given an opportunity to provide a brief rebuttal argument. [Top][home]
If a reasoned award is required, each party shall provide the arbitrator with its proposed reasoned award at the conclusion of the last closing oral argument at the hearing, or at such other time as the arbitrator shall order. [Top][home]
The arbitrator may allow a procedure different than that described herein if it better accomplishes the goals and objectives of the dispute resolution process. [Top][home]
After all closing arguments have been received, the arbitrator may request additional briefs to help resolve remaining legal questions. The arbitrator shall specify the dates by which the briefs are to be filed and served. [Top][home]
39. CLOSE OF HEARING. The arbitrator shall close the hearing by a date to be determined by the arbitrator upon the arbitrator's receipt of the last argument, evidence, or brief from a party. After the hearing is closed, no further evidence, argument, or brief shall be considered by the arbitrator in his deliberations. The arbitrator shall file and serve a written announcement of the date the hearing is closed. [Top][home]
40. FORM OF AWARD. If the form of award requires a reasoned award, each party shall provide the arbitrator a proposed award with explanation at the conclusion of the last closing oral argument at the hearing, or at such other time as the arbitrator may direct. If the form of award requires a simple award, the award shall contain no explanation for the award. [Top][home]
41. TIME OF AWARD. The arbitrator shall file and serve the award within 30 days from the date the arbitrator declares the arbitration closed. Unless there are unusual circumstances as may be determined solely by the arbitrator, the date the arbitration shall be declared closed shall be the date the last oral argument or written brief is made or filed, whichever is later. [Top][home]
42. SCOPE OF AWARD. The scope of the award will resolve all material issues that the parties present to the arbitrator during the dispute resolution process. Necessarily, the scope of the award is limited by the power conferred on the arbitrator by the parties and applicable law. Mr. Caplener will use the facts admitted at the hearing, applicable law, and arguments by the parties or their attorneys as the basis for the award. [Top][home]
43. FINALITY. Arbitration may be binding or non-binding. Most parties to an arbitration desire a quick, inexpensive, and fair resolution of their dispute. Non-binding arbitration permits the non-prevailing party to seek further redress in another forum thus prolonging the dispute and increasing its costs. Binding arbitration usually puts an end to the dispute once the award is issued. To the extent the parties have a choice, Mr. Caplener will participate as the parties so direct. [Top][home]
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2002-2007 HD Caplener