Page 13 to allow all sides to prepare adequately for the hearing and that the hearing itself goes as smoothly and expeditiously as possible. Never- theless, the extent and scope of “traditional” discovery in arbitration proceedings remain severely limited. Ultimately, it is largely up to the parties themselves to craft what they deem to be the proper scope and extent of discovery. It is to this subject that I now turn. Working with Each Other and the Arbitrator to Ensure an Appropriate Level of Discovery It cannot be emphasized strongly enough that discovery provisions under the Federal Arbi- tration Act or state law are essentially “default” rules and merely establish the mini- mum levels of discovery to which a party is entitled. Provided that the minimum due pro- cess and “conscionability” standards are met, any discovery procedures which are agreed up- on among the parties either before or after a dispute has arisen will generally override these default rules and be enforced. These include not only adopting by reference the rules of a given ADR provider but also modifying those rules to suit the parties’ specific discovery pref- erences. In other words, the parties can craft a “right” to prehearing discovery by including such provisions in their arbitration agreement. By doing so, they may largely dictate the man- ner and scope of discovery themselves. For example, if the par- ties want to be able to propound interrogatories to one another, then they are free to agree upon a provision in their arbitra- tion agreement expressly indicating that interroga- tories will be permitted and even specifying how many and what types of interrogatories will be acceptable. Indeed, (Continued from page 11) most ADR providers expressly acknowledge this flexibility in their respective rules. For example, AAA Commercial Rule R-1 states: “The parties, by written agreement, may vary the procedures set forth in these rules.” Rule 2(a) of JAMS’s “Streamlined” and “Comprehensive” Rules similarly provide that parties “may agree on any procedures not specified herein or in lieu of these Rules that are consistent with the applicable law and JAMS policies. . . .” Some ADR providers also have tiered sets of arbitration procedures which variously apply depending upon the amount in controversy or the number of parties involved. Yet, the par- ties can normally stipulate to have an alter- native set of rules apply that provide for a greater level of discovery regardless of the amount in controversy.22 To illustrate, in con- struction industry disputes, AAA’s “Fast Track Procedures” apply by default to all two- party disputes that do not exceed $100,000. They provide that there is no right to discov- ery “except as ordered by the arbitrator in exceptional cases.”23 Conversely, when the amount in controversy exceeds $1 million, AAA’s Procedures for Large, Complex Con- struction Disputes instruct that the “parties may conduct such discovery as may be agreed to by all the parties, provided, however, that the arbitrator may place such limitations on the conduct of such discovery as the arbitrator shall deem appropriate.”24 By agreeing to ap- ply the Large, Complex Construction Dispute Procedures in their arbitration agreement or at the time the initial claims are filed, the parties can thereby effectively agree in ad- vance to allow the whole panoply of discovery mechanisms subject only to the oversight of the arbitrator to keep the proceedings under control. Finally, after you have determined what your mandatory discovery obligations are under the existing law, which set of discovery rules (Continued on page 14) Discovery in Arbitration Fall/Winter 2018 “[T]he extent and scope of ‘traditional’ discovery in arbitration proceedings remain severely limited.”