This is an Insight article, written by a selected partner as part of GAR's co-published content. Read more on Insight
Former judge Warren Knight founded JAMS in Southern California in 1979 as a for-profit corporation committed to private resolution of commercial disputes. The company’s subsequent national and international expansion now makes it the world’s largest private provider of mediation and arbitration services. JAMS remains headquartered in Irvine, California, and comprises 25 offices in North America and London (UK). It maintains an exclusive panel of over 300 full-time neutrals, including retired judges and attorneys with experience in alternative dispute resolution (ADR). JAMS neutrals are supported by approximately 200 full-time associates.
While best known as a market-leading mediation provider, domestic and international arbitrations comprise some 3,000 case filings and over 30 per cent of revenue. Its reputation as a top-tier source of arbitrators owes much to both the vast experience of its panellists and to JAMS’ ongoing internal training programmes. All JAMS arbitrators, with very few exceptions, are full-time ADR practitioners who no longer practise law, thus assuring strict independence and impartiality. It also bears mention that JAMS does not operate through external committees or advisory groups composed of representatives of major law firms.
JAMS arbitrators sit in cases both administered by JAMS and not administered by JAMS. Many of our panellists are listed on the panels of other major arbitration organisations. Many are fellows of the Chartered Institute of Arbitrators.
All neutrals are vetted prior to joining JAMS, and subject to ongoing scrutiny. Party feedback is sought and welcomed, both during and after arbitrations. With increasing pressure on time and costs in arbitration, JAMS’ close relationship with its neutrals offers a degree of oversight and therefore comfort to parties – irrespective of whether JAMS is administering the case – that the process will be run in an efficient manner, and that awards are delivered in a timely fashion.
Prompt, consensual resolution of disputes is central to JAMS’ culture and identity, and stems from long experience administering ADR programmes for individuals, corporations and associations. Such ADR programmes are often administered in accordance with special rules, procedures and protocols that include training of panel and staff, extensive case tracking and reporting, self-imposed quality control and peer review standards for both professional and administrative services. In partnership with claims administrators and courts, JAMS has also created protocols and administered specialised programmes for handling mass claims arising out of class actions, mass torts, and bankruptcies.
JAMS is thus active along the entire spectrum of ADR products and services, and along the entire timeline of a dispute, up to and including the allocation of settlement funds in large-scale matters. Examples include the allocation of a US$80 million settlement to over 13,000 claimants In re Unocal Refinery Litigation; the adjudication of over 35,000 African American farmers’ discrimination claims, and compensation and overtime claims in retail industries, to name a few matters. Many JAMS neutrals serve as court-appointed special masters for settlement or discovery in multi-district and other complex litigations involving pharmaceuticals (eg, Baycol, DES, Fen-Phen and Zyprexa), Agent Orange, employment discrimination and government audits.
Among more recent developments in JAMS’ history was the launch, in 2011, of JAMS International, a wholly owned subsidiary of JAMS. Headquartered in London (UK), JAMS sought to leverage London’s status as a leading international dispute resolution destination to oversee complex commercial disputes from around the world. In doing so, its caseload often involves working closely with other regional and global arbitral institutions and neutrals outside of JAMS’ panel. JAMS International also serves as the home of the UK panel of independent mediators and international arbitrators who also offer a broad spectrum of ADR products, and are adept at designing bespoke hybrid services as required.
The launch of JAMS International was closely followed in 2012 by the opening of a resolution centre in Miami, Florida. The move recognised Miami’s importance as an international business community and a gateway to delivering ADR services in the Caribbean and Latin American (CALA) region. JAMS continues to expand its CALA presence, with the addition of neutrals in Turks and Caicos, and Mexico City, the development of a Latin American panel with strong Spanish and Portuguese language skills, and case management services in Mexico City.
Types of dispute handled
JAMS handles multiparty, complex cases in virtually all areas of the law in hearing locations throughout the world. Such matters include antitrust, bankruptcy, business, class action, commercial, construction, construction defect, e-discovery, education, employment, engineering and construction, entertainment and sports, environmental, family, financial, franchise, government, healthcare, insurance/reinsurance, intellectual property, landlord/tenant, lender liability, licensing, patents, pharmaceutical disputes, professional malpractice, marital dissolution, mass tort, partnership, personal injury, probate, product liability, public policy, real estate, securities, toxic tort, and trusts and estates matters.
Number of disputes handled
In 2015, JAMS handled a worldwide caseload in excess of 13,000 disputes, comprising close to 3,000 arbitration filings with the remainder being mediations and hybrid processes. Of these, the international caseload was roughly 230 filings, evenly split between arbitrations and mediations.
Because JAMS is committed to giving back to local, national and international communities, it established the JAMS Foundation in 2002. The Foundation, funded entirely by contributions from JAMS neutrals and associates, provides grants for conflict resolution initiatives and is now the world’s largest funder of dispute resolution programmes and initiatives. The JAMS Foundation has provided more than US$5 million in grant funding since its inception.
The JAMS Society was created in 2002 to recognise and support volunteer opportunities and community involvement for JAMS associates at a local, ‘hands-on’ level. All associates are encouraged to become members of their local society and to collaborate on outreach programmes, or to work individually on a project of their choice. JAMS Society members participate in a diverse array of volunteer activities around the country ranging from cleaning up the environment to improving the lives of children and seniors. JAMS Society members have elected to make a positive change in their communities by participating in projects such as adopt-a-family programmes, AIDS walks, blood drives, clothing drives, delivery of meals to homebound seniors and other worthwhile endeavours. JAMS neutrals throughout the country provide hundreds of hours of pro bono ADR services to local community organisations, legal associations and non-profits in need of dispute resolution services.
Weinstein International Fellowship
The JAMS Foundation established the Weinstein International Fellowship Program in 2008 to provide opportunities for individuals from outside the United States to visit the US to learn more about dispute resolution processes and practices, and to pursue a project of their own design that serves to advance the resolution of disputes in their home countries. Through 2015, 72 individuals representing more than 50 countries have participated in the Fellowship Program. The Foundation also established the annual Warren Knight Award and provides a US$25,000 grant to an organisation that promotes dispute prevention and conflict resolution.
Arbitral procedure before JAMS International
Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of [three arbitrators][a sole arbitrator]. The place of the arbitration will be [location]. The language to be used in the arbitral proceedings will be [language]. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
JAMS and JAMS International panelists include some of the most distinguished retired judges and attorneys in Europe and the United States. Most of JAMS panellists are full-time mediators and arbitrators, which allows for the avoidance of conflicts and ease of scheduling cases. Information about JAMS arbitrators and mediators, including detailed CVs, can be found at www.jamsinternational.com and www.jamsadr.com.
Appointment of arbitrators is governed by article 7 of JAMS International Arbitration Rules (JIAR) which, similarly to the ICC, calls for party appointments. (All arbitrators, of course, are required to be impartial and independent.) If the parties have not agreed on the number of arbitrators, one arbitrator will be appointed unless JAMS International determines in its discretion that three arbitrators are appropriate because of the size, complexity or other circumstances of the case. If the parties have agreed on a procedure for appointing the arbitrators, that procedure will be followed. If the parties have not agreed, then JAMS will follow a list procedure.
Costs, fees and other service charges
JAMS arbitrators set their own hourly or daily rate. Fees range from US$400–900 per hour depending on the arbitrator selected. For matters administered under JAMS International Arbitration Rules, JAMS charges a US$1,500 per party filing fee payable by the claimant at the commencement of the case. Thereafter, 12 per cent of professional fees are charged for administrative services. Fees are billed as the case progresses and are directly proportional to the amount of professional time devoted to the matter. Professional fees include time spent for hearings, pre- and post-hearing reading, and research and award preparation. Administrative fees include access to an international panel of judges, attorneys and other ADR experts; dedicated services, including all administration through the duration of the case; document handling; and on-site business support, including local phone service, internet access and fax and copying capabilities. Administrative fees (not including conference room rentals) will not exceed US$100,000. JAMS International reserves the right to adjust this cap for extraordinary cases, after consultation with the parties.
For hearings of one day or less that are cancelled or continued by or upon the application of one or both of the parties 30 days or more prior to the hearing date, fees are 100 per cent refundable except for any arbitrator time reserved. For hearings of two days or more that are cancelled or continued 60 days or more prior to the hearing date, fees are 100 per cent refundable except for any arbitrator time reserved. For hearings that are cancelled or continued inside the cancellation or continuance period fees are non-refundable. However, the cancellation/continuance policy is set by the individual arbitrators and therefore may vary. This is because time reserved and later cancelled generally cannot be replaced. In all cases involving non-refundable time, the party causing the continuance or cancellation is responsible for the fees of all parties.
JAMS International will invoice for the fees of all arbitrators, whether or not such arbitrator is affiliated with JAMS International. Receipt of payment for all fees is required prior to the delivery of an arbitration award. JAMS International reserves the right to cancel a hearing if fees are not paid by all parties by the applicable cancellation date and JAMS International confirms the cancellation in writing.
Commentary on certain features of the JAMS International Arbitration Rules
Provisions on confidentiality of arbitration
The JAMS International Arbitration Rules address confidentiality of an arbitration, specifically stating that the tribunal and the administrator ‘will maintain the confidentiality of the arbitration’ (JAMS International Arbitration Rules, article 16.1). Article 16.2 of JAMS’ International Arbitration Rules also provides that the arbitration award, unless otherwise required by law, ‘will remain confidential unless all the parties consent to its publication.’ However, the JAMS rules do not specifically require the parties to maintain confidentiality of the arbitration.
Availability of expedited procedures
For arbitrations administered pursuant to JAMS’ Comprehensive Rules, JAMS provides an optional expedited arbitration procedure in which parties can choose a process that limits discovery. The parties may include a request for such procedure in their arbitration agreement (JAMS Comprehensive Rule 16.1(a)). The parties can also opt into the expedited procedures by ‘indicating the election in the Demand for Arbitration’ (JAMS Rule 16.1(b)). If one party elects the expedited procedures and ‘any other party’ does not agree to them, ‘each party shall have a client or client representative present at the First Preliminary Conference’ (JAMS Rule 16.1(c)). Although the JAMS Rules do not explicitly say so, it appears that JAMS then has the discretion to determine at the first preliminary conference whether to proceed with the expedited procedures.
The arbitrator ‘shall set a discovery cut-off’ not to exceed 75 calendar days after the preliminary conference for fact discovery, and 105 calendar days for any expert discovery (JAMS Rule 16.2(g)). The expedited hearing must occur within 60 calendar says after the fact discovery cut-off date and, if more than one day, must be handled in consecutive days (JAMS Rule 16.2(i)). The parties can agree to these expedited procedures for cases administered pursuant to JAMS International Rules.
Both the JAMS International Arbitration Rules and JAMS Comprehensive Rules authorise interim relief. Under the JAMS Comprehensive Rules, the tribunal has the authority, upon request, to grant any interim relief that it deems ‘necessary’. Such relief may come in the form of a partial or interim award, and may include injunctive relief, protective measures to conserve property, and ‘measures to secure the payment of any award that might be rendered’. The parties agree to carry out any such awards ‘without delay’ and the awards are deemed to comply with the requirements of the New York Convention. The tribunal also has the power to summon witnesses and compel the production of documents.
The Rules set default deadlines for the appointment of the tribunal. After formation, the tribunal is to ‘promptly’ hold an initial pre-hearing conference. The Rules provide that the arbitration should be submitted to the tribunal for decision within nine months of the initial pre-hearing conference, and that the tribunal should render a final award within three months thereafter. The parties may agree to shorten the default deadlines prior to the formation of the tribunal, but the tribunal must approve the agreement if it is made after the tribunal is formed. The tribunal also has the power to impose reasonable deadlines in each phase of the proceedings.
The Rules also provide that a party may make an application for the expedited formation of the tribunal in ‘exceptionally urgent circumstances’. The applicant ‘must set out the specific grounds for exceptional urgency in the formation of the Tribunal’. JAMS may then, ‘in its discretion, abridge or curtail any time-limit under these Rules to enable the expedited formation of the Tribunal’. The Rules also suggest that the parties may raise any applications for interim relief at the initial pre-hearing conference with the tribunal, once it is formed. The Rules also do not explicitly permit or preclude the parties from applying to national courts for interim relief. The Rules explicitly prohibit ex parte requests for the expedited formation of the tribunal. In 2014, JAMS introduced emergency relief procedures to its Comprehensive Rules. The International Rules will be amended in late 2016 to include a similar provision. A party in need of emergency relief prior to the appointment of a tribunal may notify JAMS and the parties in writing of the relief sought and the basis for an award of such relief. JAMS will appoint an emergency arbitrator to rule on the emergency request. In most cases, that appointment will occur within 24 hours of receipt of the request. Within two business days, or as soon as practicable thereafter, the emergency arbitrator shall establish a schedule for the consideration of the request for emergency relief, affording all parties an opportunity to be heard. The emergency arbitrator will determine whether the party seeking emergency relief has shown that immediate and irreparable loss or damage will result in the absence of emergency relief and whether the requesting party is entitled to such relief. The emergency arbitrator will enter a reasoned order or award granting or denying the relief.
Consolidation of disputes between the same parties and joinder of third parties
JAMS’ International Rules provide for consolidation of disputes and joinder of third parties. Article 6.1 provides the JAMS International administrator with the discretion to decide, ‘after consulting with the parties to all proceedings and with the arbitrators, that the new case will be referred to the Tribunal already constituted for the existing proceedings’ (JAMS International Rules article 6.1) The article requires JAMS to ‘take into account all circumstances, including the links between the two cases and the progress already made in the existing proceedings.’
Additionally, article 6.2 of the JAMS International Rules provides for joinder of third parties in two circumstances. First, if a third party that ‘seeks to participate in an arbitration already pending’ requests to join, the tribunal must ‘decide on such request, after consulting with all the parties, taking into account all circumstances it deems relevant and applicable’ (JAMS International Rules article 6.2). Second, if a party to an already pending arbitration ‘intends to cause a third party to participate in the arbitration’ and requests accordingly, the tribunal must likewise decide on the joinder using the same guidance criteria.
Time limits for rendering of the award
JAMS International Rules state that ‘the final award should be rendered within three months’ after the dispute is heard by the tribunal and submitted for decision.
Treatment of costs of the arbitration
Article 34 defines arbitration ‘costs’ as comprising, among other things, the tribunal’s fees as well as the ‘reasonable costs for legal representation of a successful party’. The tribunal’s fees are calculated ‘by reference to work done by its members in connection with the arbitration’ and ‘will be charged at rates appropriate to the particular circumstances of the cases including its complexity and the special qualifications of the arbitrators’ (JAMS International Rules article 34.2). Under article 34.4, the tribunal is required to ‘fix the arbitration costs in its award’. Importantly, under that same article, the tribunal ‘may’ apportion costs ‘among the parties’ if the tribunal ‘determines that such apportionment is reasonable, taking into account the circumstances of the case’.
JAMS’ optional arbitration appeal procedure applies only upon express agreement. Selection of the appellate arbitrators is left to the parties, but if they fail to reach agreement the assigned case manager is authorised to make the appointments. The appellate panel is mandated to apply ‘the same standard of review that the first-level appellate court in the jurisdiction would apply to an appeal from the trial court decision.’
Special or unusual features
Consistent with JAMS’s high resolution rate in mediating complex business disputes to resolution, JAMS applies a unique ‘mediator in reserve policy’ for international arbitrations. In doing so, within one week of the commencement of an international arbitration at JAMS or JAMS International, a suggested list of mediators will be sent to the parties. The parties will then be encouraged to select a mediator from the list, who will be placed in reserve during the pendency of the arbitration. The mediator so selected (the ‘mediator-in-reserve’) will be available to the parties to assist in settlement negotiations in the event that, at any time in the course of the arbitration proceedings, the parties all agree to enlist the mediator’s assistance. There will be no charge to the parties for the appointment of the mediator-in-reserve, and the parties will not incur fees unless and until they choose to utilise the mediator’s services.
The mediator-in-reserve is not informed of the parties’ selection until and unless the parties decide to request the mediator’s services. The parties will not be bound to use the mediator-in-reserve and may, at any time, mutually select another mediator to assist in his or her settlement discussions.
The arbitrators in the proceeding will have no knowledge of the identity of the mediator-in-reserve, or whether the parties may have engaged their services at any point in the arbitration proceedings.
Recent and forthcoming developments
On 1 July 2014, JAMS made effective its latest version of the Comprehensive Arbitration Rules and Procedures. The JAMS rules now permit the arbitral hearing to be conducted by video conference.
In 2015, recognising growing interest in online dispute resolution, JAMS launched JAMSConnect, an operator-managed online mediation system permitting remote parties to resolve disputes without incurring the time and cost of travel.
Later in 2016, JAMS will issue a revision to its present set of International Arbitration Rules. The new Rules, among other things, will provide for emergency relief, expedited procedures and update existing provisions relating to consolidation and joinder provisions.