Arbitrating Pension Plan and ERISA Cases: Best Practices for Effective Case Management

By: John E. Sands, Mark L. Irvings, Ira F. Jaffe and Janice Holdinski

Arbitration is a viable and widely used dispute resolution technique for a broad spectrum of disputes, including those involving pension plans and the Employee Retirement Income Security Act (ERISA). When disagreements arise over the terms of a pension plan, or when they involve a plan sponsor of a multi-employer pension plan, arbitration offers a structured and fair process for resolving those conflicts.

Given the complexity and potential consequences of pension plan and ERISA disputes, it's crucial for arbitrators to possess a deep understanding of the industry's intricacies, vulnerabilities, and variances. Expertise in this field is essential due to the significant stakes involved. As the arbitrator, there are many practical applications you can employ to successfully manage these case types.

Active Case Management: A Key to Success

To effectively manage complex pension plan and ERISA matters, arbitrators must remain actively engaged in the case management process. This involves narrowing legal and factual issues for a more efficient hearing and emphasizing the importance of the preliminary conference with the parties.

Best Practices for Preliminary Conferences

The preliminary conference is essential, as it sets the tone for the remainder of the arbitration proceedings. It should be your goal, as the arbitrator, to foster a collaborative atmosphere to help create a smooth case management process moving forward. Here are some strategies for the preliminary conferences for pension plan and ERISA arbitrations:  

• Encourage cooperation between the parties. It is key that both parties are actively involved in the preliminary conference to make the hearings more effective.
• Control the proceedings effectively. Maintain order throughout the process so that the conference stays focused on the relevant issues.
• Confirm the basics of the case. Establish locale, expectations, exchange of exhibits, stipulations of facts, and discovery procedures so each party is aware of how the case will move forward. 
• Discuss the issues, including whether one or more issues should be bifurcated for preliminary ruling.
• Explain the discovery process. Clarify how discovery will be handled, as the Federal 
• Rules of Civil Procedure generally are not applicable to arbitrations.
• Consider requiring a detailed privilege log during the discovery process. Have the parties’ submit a clear and comprehensive log for any items withheld on the basis of claimed privilege.
• Address expert witness attendance. Determine whether expert witnesses will be present for other expert testimony.
• Avoid motions to compel. Encourage parties to resolve discovery disputes through alternative methods, such as conference calls or written submissions via email or letter.
• Schedule conference calls as needed. Use conference calls to discuss and resolve disagreements between the parties or to address non-cooperation with each other’s requests.
• Provide your estimated time. Inform the parties of your estimated time on the case to help them understand potential costs.
• Direct the parties on brief submissions. Guide the parties on including copies of cited cases, especially arbitrations, and those from WESTLAW, LEXIS, and Employee Benefit Cases. 

After the preliminary conference, prepare a case management order containing a clear and concise outline of the key points discussed during the conference. This will help both parties as the case moves forward. 

Pre-Hearing and Discovery Activities

Pre-hearing and discovery activities are essential for gathering information and resolving early disputes. During this phase, parties should exchange:

• Lists of proposed exhibits. Ask parties to indicate if there are objections to the relevance or authenticity of exhibits, or if they have no objections.
• Lists of proposed stipulations of fact. Ask parties to indicate if each proposed fact stipulation is accepted or rejected.
• Witness lists, with brief summary of the areas that will be subject to testimony.
• Docketing of exhibits, witness lists, and stipulations. It is important to identify the desired format for these items as well as provide clarity on any stipulations, dates, and pre-hearing motions.
• Discuss if the parties want to submit pre-hearing memoranda with a description of the evidence they expect to present through witnesses, questions of fact, and legal arguments supporting conclusions of law, and reply memoranda.
• Review whether in-person hearings are needed or if the case may be either decided on the basis of a documentary record or virtually.

During this process, if issues or discovery disputes arise, parties should strive to resolve them in a collegial manner. If unsuccessful, they can raise the issues with the arbitrator in an email. A conference call can then be scheduled to address the parties' concerns. Motions for summary judgment, if any, should be scheduled to allow sufficient time for response and decision prior to the scheduled hearings. Pre-hearing motions in limine are generally discouraged.  

Review procedures to be used in connection with expert testimony.  Schedule actuarial testimony so that all actuaries are present for actuarial testimony and segregate when the actuaries will testify to avoid unnecessary costs.

Best Practices for Managing Pension Plan Cases

In summary, here are some best practices you can employ as an arbitrator managing pension plan and ERISA cases:

• Understand the issues thoroughly. Familiarize yourself with the specific laws, regulations, and precedents relevant to the dispute. Identify key issues and the positions of the parties and seek clarification or request additional information or argument throughout the process, as necessary.
• Review the case documents carefully. Read all submitted documents to thoroughly understand the issues involved.
• Communicate effectively. Provide clear instructions and guidelines on the arbitration process, timeliness and expectations. Facilitate and encourage an open dialogue between parties, and emphasize the importance of avoiding ex parte communications.
• Draft rulings and awards carefully. Write a clear, well-reasoned ruling that addresses all issues and provides a solid legal basis for your decisions. 
• Keep fairness in mind. Give both parties an equal opportunity to present their case and listen with respect to both sides.

By following these best practices, arbitrators can effectively manage complex pension plan and ERISA cases, providing a fair and efficient resolution of these disputes.