“Arbitration” can seem like an intimidating word. While it is a method of resolving disputes outside of the courtroom, arbitration is binding, and decisions are enforceable in a court of law. It’s the final word, as it were. After reviewing evidence and hearing arguments from both parties, the arbitrator has the legal authority to make a decision. It need not be an intimidating or even adversarial process, however. In fact, arbitration can be an efficient, effective route to resolution – helping you bypass costly and time-consuming litigation.
Successful arbitration is built on a solid foundation of planning, preparation, and professionalism. To arrive at a reasonable resolution:
1. Work with the Right Arbitrator
During this process, parties and their counsel have the opportunity to select an arbitrator. The professional should have a background in the area related to the dispute (e.g. if a dispute involves an aerospace contract, an arbitrator with a background in this field is invaluable as they understand the specific legal, engineering, and scientific issues involved. They won’t have to “catch up” on technical aspects or jargon). Always inquire about their background and experience, particularly as it pertains to the nature of the dispute.
2. Know What to Expect
Your arbitration may be subject to AAA Commercial Arbitration Rules or ICDR International Dispute Resolution Procedures. This will influence what you can expect during discovery. A few keys to keep in mind:
AAA: You are required to produce documents to support your claims and defense. Parties can also request the opposing parties provide relevant documents and records as long as they are not unduly expensive or burdensome.
ICDR: You need the arbitrator’s permission to seek discovery and justify the relevance of the requested materials. You will also discuss with the arbiter witness lists, subjects of witness testimony, and how witnesses will provide testimony (e.g. written, telephonic, etc.).
In both cases, the discovery process is more streamlined than it is in a traditional trial. This is because arbitration is intended to be a more efficient and cost-effective route to resolution. Another part of the process that is also limited is pre hearing motions. Under AAA, the arbitrator has to determine that a motion is likely to succeed and narrow the scope of the case. ICDR arbitrators typically operate the same way.
Keep it short and simple. This is the key to a good brief; they should be focused and get to the point directly. Now is not the time to wax poetic or to fill space with lengthy paragraphs, unnecessary adjectives, and other extraneous “stuff.” Present the information the arbitrators need. And that’s it!
4. Prepare a Compelling Opening Statement
Your brief is your first opportunity to present your case in a clear, compelling way. Follow up with a strong opening statement. While you do write your strongest point in the brief, presenting them orally gives you the chance to gauge the arbitrator’s understanding, emphasize specific items, and, essentially, make your case.
5. Make Your Move Sooner Rather Than Later
Starting the arbitration process earlier rather than later can help keep projects on track, resolve disputes efficiently, and even preserve critical relationships. Don’t wait until tensions worsen or a contract is nearing its end.
If you have questions about preparing for an arbitration hearing, contact Breakthrough Mediation today. We are happy to walk you through the ins and outs.