Nickolas Dibiaso was appointed as a Judge of the Fresno County California Superior Court in 1985 and served in that position until 1989. For the most part, because he came from a commercial civil trial background, he was primarily assigned to complex civil cases and other civil matters.
In late 1989, he was appointed as a Justice of the Court of Appeal of California, Fifth Appellate District. He participated in thousands of civil and criminal appellate cases, including dispositions by panel opinions, by writ reviews, and by motions. The California Appellate Reports contain about eighty published opinions he signed as the authoring Justice. During the last five years of his tenure on the Court of Appeal, he was the Court’s Assistant Presiding Justice. He retired from the Court in 2006, after about 22 years on the bench. We asked him how his expertise informs his approach on the American Arbitration Association® Judicial Panel.
Q. What motivated you to transition from the bench to arbitration and/or mediation work, and how did you become connected with the AAA?
I retired from the Bench because I had maxed out my retirement benefits and, while I enjoyed the academic aspects of the Court of Appeal, I came to realize that the best job I ever had was as a Superior Court trial judge, in a live courtroom handling civil trials with the parties, counsel, and juries. Being an arbitrator, referee, and private judge enables me, to some extent, to get back into that sort of forum.
When I was a practicing lawyer, I had served as an AAA Commercial Arbitrator during the late 1970s and early 1980s. After I retired from the Bench, it was a natural fit to return to the AAA panels.
Q. What do you value most about serving as a neutral with the AAA?
As noted above, I thoroughly enjoyed serving as a Superior Court trial judge, and, although an arbitration or other neutral-conducted hearing is not the formal equivalent of a civil trial in a courtroom, it is nevertheless an adversarial civil proceeding, the venue where I want to spend whatever time I have left as an active participant in the profession.
Q. How has your experience as a judge shaped your approach to ADR proceedings?
I approach an ADR proceeding the same way I approached a civil trial as a Superior Court Judge. Again, though not the formal equivalent of a civil trial in a court, the fundamental principles that apply in contested adversarial proceedings in a court apply equally in contested ADR adversarial proceedings — that is, that each party have fair notice of the claims and defenses raised and an equal opportunity to present relevant evidence and legal argument, all before a neutral and independent decisionmaker who will dispassionately implement the governing procedures and rules, whether set by law or contract, and render a decision based solely upon a careful application of the pertinent law to the record evidence.
Q. How do you approach case management in arbitration or mediation, and what strategies do you use to keep the process fair, efficient, and focused?
My approach focuses principally on pre-hearing discovery and the manner and means of resolving discovery disputes. Even if the contract or the law (such as California Code of Civil Procedure Section 1283.05) incorporates in an arbitration the Code’s discovery rights and procedures of a particular jurisdiction, I encourage the parties to work out with me a rational discovery plan that meets the needs of the parties given the nature of the dispute and that concentrates on the core factual issues and the likely essential discovery required by each party to fairly and fully present their respective cases. If the only discovery rights are those set in the rules of an administering agency, such as the AAA, I will take the same approach, but typically with limited use of interrogatories and with no requests to admit. I will also usually require disclosures of the sort authorized by FRCP 26, which operates to promote candor in discovery. In the event unexpected circumstances require a modification of the initial discovery plan, I will work with counsel to do so to the extent reasonably required. After almost 600 neutral adversarial proceedings over the past twenty years, I have, for the most part, been successful in carrying out this approach.
In addition, and notwithstanding the required application in a case of any Code discovery procedures, I have been almost entirely successful in securing stipulations from the parties that discovery disputes be handled efficiently, without implementing the typical paper-laden, multi-detailed Code procedures, even if otherwise applicable by contract or law. Instead, parties have typically agreed to simply present the dispute to me by an initial conference phone call and, if thereafter necessary, by an exchange of emails, with whatever attached documents are required to adequately present the dispute, followed by a concluding conference call with the parties. When Code procedures do not apply, I universally adopt this informal means of resolving discovery disputes.
Finally, if the contract does not incorporate a Code-based right to bring a dispositive motion, I will often permit the parties to present a dispositive motion without requiring an initial letter request for permission to do so. However, in these instances, I will reserve the right in my unfettered discretion to refuse to proceed with such a motion if I am satisfied, after a review of the moving papers, that the motion will not likely narrow the issues to be aired at the hearing or otherwise promote the efficient and cost-effective resolution of the case.
Q. What advice would you give to advocates or parties preparing for arbitration or mediation?
An arbitration hearing is not another round of depositions. Though less formal than a court proceeding, it is nonetheless a trial. As a trial, it should have points and themes geared to the issues in dispute and should present only those facts and evidence necessary, and only to the extent necessary, to establish the conclusions sought to be proved and argued by the party. It is persuasion, not fact-dumping. It is thus not a proceeding for the unfocused regurgitation of all or virtually all of the facts or documents disclosed in discovery, regardless of their relevance, probative value, or persuasiveness with respect to any disputed issue. Presenting a case in an arbitration in the same manner as the case would have been presented in a court makes for an efficient and thus a cost-effective hearing, which will carry over with the same positive effect during the post-hearing briefing.
Q. Which skills or qualities do you believe are most essential for a successful neutral, and how have you cultivated them?
I have endeavored over the past twenty years to conduct all phases of an arbitration in a manner that satisfies the parties from the start to the finish and that, even though one side will probably be disappointed with the ultimate decision, will result in all parties’ feeling confidently that the decision, whatever it is, was the result of my thoughtful application of the relevant law to the evidence and arguments presented by the parties and not the consequence of my inattention or inertia or of irrelevant influences.