December 3, 2010
Thirty years ago, arbitrations lasted a day and expert testimony was rare. Ajudication issues were simpler and an Industry Arbitrator was expected to add expertise to the panel that would not otherwise come to their attention f rom the claimant.
But today, arbitrations often last a week or more with multiple witnesses, dueling experts, and protracted examinations. Furthermore the panoply of financial products, advisers, fee accounts, has exploded with the growth of 401K and self directed retirement programs.
Today Arbitrations resemble court hearings with complete discovery, standard objections, motions and procedures. Evidence burdens cannot be inferred and claimants are often put to procedural tests as well as evidentiary ones. e.g. Claimants are often put to the test of disproving financial projections and representations, often at great cost.
The last person who should rule on the evidence is a representative of the very industry whose foundation is built on the very representations at issue. Even more ironic, when there is an issue that industry expertise would be welcomed, there is no methods to even select an industry arbitrator with any relevant expertise.
Arbitration has grown beyond the days when the Industry panelist brought expertise to a short hearing often heard without experts. The time for the evidence to be heard by a fully neutral panel is essential. Make the rule permanent.