The thrust of Berlacher's argument is that the arbitrators' conduct in refusing to postpone the May 21 hearing and/or the arbitrators' conduct in its entirety constitutes misconduct requiring the Court to vacate the award under the Act. However, because arbitrators are given a great deal of latitude in conducting arbitration proceedings, and based upon the record, the Court cannot find that the arbitrators' conduct constituted misconduct nor can the Court find on this record that there was even an abuse of discretion by the arbitrators.
Postponing the Hearing
Berlacher argues that the arbitrators' refusal to postpone the May 21-22 hearings upon sufficient cause shown constituted misconduct and prejudiced his rights because he was unable to prepare his case.
"Arbitrators are to be accorded a degree of discretion in exercising their judgment with respect to a requested postponement. Therefore, assuming there exists a reasonable basis for the arbitrators' considered decision not to grant a postponement, the Court will be reluctant to interfere with the award on these grounds." Fairchild & Co. Inc. v. Richmond, F. & P.R. Co., 516 F. Supp. 1305, 1314-1315 (D.D.C. 1981). In this case, the arbitrators had a reasonable basis for denying Berlacher's request for a postponement. Throughout the proceeding, there had been problems in coordinating the schedule of all the parties, counsel and the arbitrators. The injury was never presented as a life-threatening situation, nor were any medical complications arising from the injury asserted. In addition, Berlacher knew about the claim months before the hearing and had ample time to prepare his case. Based upon this record, the arbitrators were not guilty of misconduct.
Berlacher argues that the arbitrators refused to hear evidence relevant to the controversy when they refused to enforce a discovery agreement between the parties that Berlacher claims was essential to his counterclaim. However, the arbitrators are charged with the responsibility for determining what evidence is relevant and that the arbitrators entertained extensive argument from both parties relating to the production of the discovery, following which they went into executive session to determine whether production was required. After careful consideration of the dispute, the arbitrators, in the appropriate exercise of their discretion ruled that PaineWebber was not required to produce the confidential and proprietary records in question and that Berlacher was not prejudiced by not having access to the discovery.
Legal Memorandum and Transcripts
Before arbitration, the chairman agreed to allow the parties to submit post-hearing legal memoranda on the legal and factual issues presented. On the final day of arbitration, the panel decided not to allow such memoranda, and Berlacher argues that he was prejudiced by this decision. However, the record is clear that the arbitrators fairly determined that they could rely on the extensive record of the proceedings as well as extensive factual and legal oral argument by counsel for both parties.
Berlacher argues that the arbitrators received only the transcripts of the hearings at which PaineWebber presented its case, and they reached their decision before receiving the transcripts of the hearings at which Berlacher presented his defense and counterclaim. However, the arbitrators were not required to read any of the transcripts and they properly used their discretion in reaching an opinion based on the testimony they had heard.
Based upon the record, the conduct of which Berlacher complains, viewed in its entirety, does not constitute misconduct on the part of the arbitrators.
JUDGMENT ORDER - February 15, 1991, Filed
In accordance with the memorandum and opinion issued this date in these matters, it is hereby
ORDERED that judgment is entered for PaineWebber Incorporated. The arbitrator's award is confirmed and this Court directs the entry of judgment on the arbitration award.
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