Your first arbitration is nothing to fear. The arbitrator was once in your shoes and, if you are organized, candid, and respectful, is likely to overlook any unintentional errors.
Relax! Arbitration is less formal than litigation. If you are not sure about how to handle something, most arbitrators would rather you ask them than guess. Feel free to ask where your witness should sit if it is not clear, how the arbitrator likes to be addressed (unless the arbitrator is a retired judge—then always “Your Honor”), when and how long breaks and lunch will be, etc. Lately, sometimes dress codes are relaxed for counsel and witnesses.
Keep in mind the primary goal of arbitration—resolving disputes fairly in a quicker, less expensive way than litigation. A litigation mindset annoys your arbitrator and can deprive your client of the benefits of arbitration. In civil litigation, discovery can cost more than the trial and may not add an understanding of the facts commensurate with the time and money expended. Recognize that all but the most complex arbitrations are completed in well under a year. If you are perceived as dragging out the process, the arbitrator will likely view you with suspicion.
Study the rules applicable to your matter. They are deliberately quite different from the federal and state rules of civil procedure in order to further the primary goals of arbitration. Discovery and motion practice are limited and may be nonexistent. Compare the American Arbitration Association’s Consumer Rules with its Commercial Rules. See www.adr.org/Rules (note that the association’s Commercial Rules were revised in 2022).
Remember the preliminary hearing is important! In most arbitrations, you have only two personal contacts with the arbitrator, the preliminary hearing at which a schedule will be set and any unusual issues discussed, and the hearing on the merits. Except in complex cases, do not expect a prehearing conference before the merits hearing. Thus, you have one chance to make a good impression going into the hearing. Make a checklist of what you need to say. Listen carefully to everyone who speaks; do not interrupt. Most prelims are by phone, which means that the arbitrators cannot see who is speaking. State your name before you start to talk unless your voice is very different from everyone else’s. The prelim is a business meeting. The arbitrator may ask for a short summary of your case, but the primary purpose is not to argue your case; it is to agree on a schedule and flesh out potential problems.
Approach the preliminary hearing with a draft scheduling order. An agreed scheduling order that you negotiated with your adversary will make your arbitrator happy. That can be fairly easy if the opposing party is represented by reasonable competent counsel. Make an appointment to discuss the following by phone:
How long is the hearing likely to last?
Several mutually convenient dates for the hearing (cleared with witnesses).
When and how to exchange information in accord with the applicable rules. They may range from offering almost no discovery to allowing for depositions. Even if depositions are allowed, the arbitrator will expect that they will be very limited in number. Interrogatories are often not allowed. (We all know that they are mostly a waste of time, don’t we?)
Court reporter? Transcripts are expensive, and with such limited grounds for appeal, parties may choose to forgo transcripts. However, if the case is complex and detailed post-hearing briefing is expected, transcripts are helpful in writing the briefs and helpful to the arbitrator or arbitrators.
Do you want to offer a prehearing memorandum (usually a short memo outlining what the evidence will be and why that means an award in your client’s favor)? The question of post-hearing briefing is often reserved until the end of the hearing on the merits.
Are any particular difficulties anticipated? For example, witnesses out of the jurisdiction, health issues for a witness, trade secrets requiring a confidentiality order, electronic records voluminous enough to require a special discovery order, questions about the arbitrator’s authority.
Preparation for the prelim is a different matter if the opposing party is pro se, often the case in consumer cases. While some pro se parties are reasonable in discussing the questions above, not all are. The safest approach is to email the opposing party with your suggestions as to the scheduling order, being careful to solicit their views politely. Many pro se parties already feel disrespected by your client and you do not want to add to their anger. Some will not respond, but at least you will get credit for having made the effort.
Study the Federal Arbitration Act, 9 U.S.C. § 1 et seq. There are very few grounds for overturning an arbitration award, primarily arbitrator corruption. One of them is failure to consider relevant evidence. That is why evidence is frequently admitted in an arbitration that would never be admitted in a court. “Let it in for what it’s worth” is the usual mantra. The arbitrator is usually an experienced lawyer who has no problem disregarding worthless hearsay or irrelevant testimony. Object to hearsay, but there is no need to make a record by objecting to every question that calls for hearsay. If your objection is overruled on a particular subject, continued objections are just annoying. You are free to argue later that the objectionable evidence should be disregarded.
Motions: Because the failure to consider relevant evidence is a ground for reversal, arbitrators are reluctant to rule in favor of a party before hearing evidence. If the facts are genuinely not in dispute and your client should win under settled law, then ask the arbitrator for permission to file a motion for judgment.
Try to avoid discovery motions. The arbitrator will look for a practical, cost-effective solution to discovery issues. Unless your opponent is clueless or a jerk, you two can work out such a solution yourselves and gain respect from your arbitrator.
Never, ever, file a motion without first requesting permission.
Respect your aribitrator! Your arbitrator should have more experience than you do and is in all likelihood intelligent. Do not be obsequious, but always show respect no matter how upset you may be at a ruling. Never talk down to your arbitrator. Instruct your witnesses to answer the arbitrator’s questions, if any, in a straightforward manner. Attempting to avoid hard questions is both counterproductive and disrespectful.
For memoranda and briefs, keep it short. Litigation “short” may be 25 pages, but arbitration “short” is 10 pages. Provide the arbitrator with copies of the authorities you cite. No string cites. Your arbitrator is looking for authorities on point—quality not volume. Arbitrators do not have law clerks, so they need to read what you cite themselves. Unless the legal issues in the matter before them are very obscure, they do have a good grasp of the law or they would not be arbitrators. If there is nothing on point, say so and do the best you can arguing by analogy. Candor is appreciated.
Finally, it should be apparent from the above that arbitrators appreciate thoughtful organization. Exhibits are normally provided to the arbitrator in advance in three-ring binders, as well as in electronic form. Some arbitrators prefer to have exhibits in just one of these formats. They do not expect you to know in advance exactly when each exhibit will be used, but there should be some sense of grouping of like with like, either chronologically or by subject matter to be raised with witnesses. Physical exhibits should be easy to access—binders clearly labeled on the front and spine with the exhibit numbers—and in good quality binders that are not overstuffed so that it is easy to flip from an exhibit in the front of the binder to one in the back without having to realign the metal clasps every time. Saving a few hundred dollars on binders wastes more than that in time and it is annoying. Likewise, unless your arbitrator has given you a template for the exhibit list, make sure it has space for notes. These things may seem trivial, but they make a hearing go more smoothly for the trier of fact, who has no courtroom clerk and no law clerk. And if your office is hosting the hearing, the arbitrator appreciates a comfortable chair, room to spread out, and decent coffee!
Your first arbitration is nothing to fear. The arbitrator was once in your shoes and, if you are organized, candid, and respectful, is likely to overlook any unintentional errors.
Sheila J. Carpenter is the managing member of Carpenter ADR, LLC, in Purcellville, Virginia.
American Bar Association
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