• Mediator of civil cases since 1996,
    settlement rate of 85%-95%

precisely how is arbitration different from litigation & what should I do differently?

It is often said (particularly by arbitrators) that arbitration is different from litigation. Not just the fact that there is no appeal or that discovery is discretionary, but that the attorney representing a party should be going about the task differently from how things are done in court.

Rarely if ever does someone explain in specific terms that make sense what that difference is. What follows is an attempt to explain this from someone who had a hard time figuring this out while representing parties in arbitration.

Arbitration almost always occurs because transaction lawyers agreed to the arbitration clause. Arbitration services market their dispute resolution processes by emphasizing the economy and speed available in arbitration. They impart this message to the arbitrators on their panels as well. If the parties put an arbitration clause in their agreement, it stands to reason that they affirmatively decided that they wanted something different from what they would get in court.

so what specifically is different and how should it affect your representation of your client? here goes:

  • Part of an arbitrator’s job is to bring about a sure resolution of the dispute. This means making an appeal fruitless. Your instincts, especially when things seem to be going against you, will be to build a record. The arbitrator’s job is to make that difficult, and there is a high standard for reversal on an arbitrators ruling. Thus, it is likely better to adjust your case or your expectations, to work on turning your arbitrator around, or consider settlement instead.
  • Part of an arbitrator’s job is to promote efficiency. This should result in a more focused case from the outset of the dispute—pick your horse and ride on it rather than working to keep all of your arguments in play. This should also lead to a more focused discovery approach. You are more likely to get disputed information where you have narrowed your discovery. One strategy is to put yourself in a position to explain that you have voluntarily gone without many items you would like to have in the interest of efficiency, but that what you have asked for, you really do need to present your case at the hearing.
  • An arbitrator is not supposed to foreclose people from making their arguments and presenting their evidence and arguments. You can expect more patience in this regard than some judges might have. Unless perhaps the arbitrator is a former judge.
  • Arbitration is supposed to be a more informal process. This means that you should anticipate more openness to suggestions that might make the process more efficient or fair, at least so long as your opposing counsel is agreeable. Working on (and accommodating) your opposing counsel is thus an important part of doing your job.
  • Summary judgment may be a fact of life in federal court and some disputes, or more often, parts of disputes, can be disposed of summarily in arbitration. But these are the exception. So it’s probably a waste of time and money to make such a motion.
  • One things that is not much different, even though it is an oft-repeated difference between arbitration and litigation, is the rules of evidence. Thus inadmissible hearsay, even an affidavit, may come into evidence; the unqualified expert may be permitted to testify; unauthenticated evidence may be considered. But the arbitrator, who is usually trained in law – will disregard or discount the value of that evidence.
  • Another old saw about arbitration is that the arbitrator is to try to reach an equitable resolution and need not follow the law. That old principle of arbitration is at least somewhat cabined, and as a practical matter, rare is the arbitrator who will totally disregard the law in making a decision.

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