Perspectives from the Arbitrator: Tips for a Successful Arbitration
June 1, 2021
By: Craig D. Roswell
A misconception has developed that arbitration is no quicker than litigation.However, arbitration can be an effective and efficient alternative to the time consuming and costly process of litigation. The following tips can shed some light on to why arbitration should be a consideration before litigation, and how to effectively use arbitration to a successful resolution of legal issues.
1. Help to Expedite the Hearing Schedule
Parties to an arbitration have greater control over the schedule for resolution than they would if the case were to be tried in a court of law. Often, an arbitration hearing is scheduled in the distant future because the parties have expressed a desire for a protracted schedule for discovery. Agreeing to a brief period for the exchange of discovery not only permits the hearing to be scheduled sooner, it may ultimately save the parties significant cost, as it requires the parties to conduct only the discovery they deem most necessary.
2. Consider Alternate Methods to Expedite the Entire Arbitration Process
Waiving the right to any exchange of discovery will allow a hearing to be scheduled mush more quickly. Similarly, if the case is simple enough that the parties agree to waive the exchange of discovery or if a relatively small dollar amount is in dispute, the parties may wish to waive their right to an “in person” hearing and have the arbitrator decide the case based only upon written submissions made by the parties.
3. Make It Easy for the Arbitrator to Follow Your Case
Arbitrators appreciate it when it is easy to follow along with the case during the hearing. It is helpful to prepare a document notebook for the Arbitrator’s use during the hearing. Some key, but often overlooked details, include:
- When assembling exhibit notebooks, place the documents in the order in which you intend to present/refer to them.
- Make the “hot docs” easy for the Arbitrator to find in the notebook.
- If there are multiple versions of the same document, place them behind the same tab, marking your version “A” and the others behind it “B,” “C,” etc.
- Include in the notebook an 8½ x 11 version of every oversized exhibit used.
4. Don’t Waste Your Opening Statement
Your opening statement presents an opportunity to tell the story from your perspective. Perhaps more importantly, it is also an opportunity for you to begin to educate the Arbitrator. Use your opening statement to lay out your case and clearly define your damages (if any).
5. Expose Your Smoking Gun
In arbitration, the rules of evidence and procedure are generally are more relaxed than in litigation. In many instances, a party can introduce evidence in an arbitration that would be inadmissible in litigation. Thus, do not assume that you should not present certain evidence because it is inadmissible. Present the evidence and allow the Arbitrator to determine whether that evidence is compelling enough to be admitted. You would hate to find that you did not present the “smoking gun” for fear of it being inadmissible only to find that the Arbitrator’s ruling would have been different had that smoking gun been presented.
6. Define the Award
Use your closing argument to reinforce to the Arbitrator the facts most favorable to your case. Furthermore, end your closing argument by outlining exactly what you hope the Arbitrator will award. This is the last opportunity to present your case to the Arbitrator so be sure to leave a good impression.
7. Keep It Professional
At all times, be professional. Do not mock or belittle the opposing side during the hearing. Unprofessional behavior will only undermine your case with the Arbitrator.