The need for arbitration often arises as a result of a contractual agreement. Employment contracts, in particular, are likely to include mandatory arbitration clauses. These days, some state courts require arbitration before the litigants are allowed to proceed with an actual jury or bench trial, too.
If you’re relatively new to the legal profession, you may find yourself handling arbitration hearings more frequently than you anticipated.
The casual setting and simplified rules of arbitration should not mislead you into thinking that preparation is any less critical here than in a court trial, however. For your client, this is just as stressful and important as a jury trial would be.
With your hearing on the horizon, this article will show you how you should prepare. But first, let’s get some context.
What is arbitration?
Before diving into the intricacies of preparing for an arbitration hearing, it’s important to establish a clear understanding of what arbitration actually is.
In essence, arbitration is a form of alternative dispute resolution (ADR) that serves as a substitute for traditional litigation in court.
Unlike court trials, which are public and follow a highly structured, formal process, arbitration proceedings are generally private and often allow for more flexible procedural rules. They’re one of the most popular forms of ADR today.
In an arbitration, both parties agree to have a neutral third party, known as an arbitrator, make a decision about their dispute after hearing each side’s arguments and reviewing all of the evidence. Depending on the type of arbitration, the arbitrator’s decision may be binding or non-binding.
Arbitration is commonly used in things like commercial disputes, employment disagreements, and consumer issues.
The process offers several advantages, including faster resolutions, lower costs, and the ability to choose an arbitrator with specialized expertise in the subject matter of the dispute.
It can also have drawbacks, however. For example, the proceeding may have less rigorous rules of evidence, which could potentially disadvantage one party. Moreover, many arbitration rulings have limited options for appeal which can be frustrating if your client ends up on the losing side of the dispute.
Preparing for a hearing is very different from preparing for trial.
It’s likely that the arbiter knows more about the subject matter than a judge or jury would, so you’ll need less emphasis on explaining the issue. That can allow you to argue with more nuance, but it also means that arguments on both sides might be more complex.
Attention to detail is key. Here’s a step-by-step look at how to prepare thoroughly:
#1: Understand the arbitration agreement deeply
As noted above, many arbitration proceedings are mandated by an agreement between the parties. If your client is in this situation, the first thing you need to do is carefully review the arbitration agreement (or clause) at issue, as it will set out essential parameters like the selection of arbitrators, the rules governing the procedure, and other specific guidelines.
Note that there are many variations among arbitration clauses. Thus, just because you’ve handled one contractual arbitration doesn’t mean you’re prepared to handle all of them.
Don’t just skim the agreement. Make sure to thoroughly understand what your client has agreed to before you take any further steps.
#2: Understand the applicable rules
In many instances, the arbitration agreement will mandate that a particular organization serve as the arbitration service such as the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services, Inc. (JAMS).
Once you know which body will oversee the arbitration, you’ll want to thoroughly familiarize yourself with any institutional rules and procedures that may apply.
AAA, for example, has multiple sets of rules depending on the type of dispute at issue. A commercial dispute has different rules than something like construction, for example.
JAMS also has its own set of rules, which you’ll want to read and comprehend as you begin working on the case.
Make sure you know the rules that apply to your client’s specific dispute.
#3: Conduct preliminary research and gather information
Now that you understand the parameters of your arbitration, you’re going to want to get a complete understanding of your client’s case.
A good place to begin is by gathering the relevant laws that will apply to dispute and then breaking down the essential elements that are required for each claim or defense at issue.
Regardless of whether your particular situation allowed for prior discovery, you’ll next want to gather all essential documents and evidence to support your case. If you don’t understand how this process works in an arbitration (as opposed to a traditional court case), be sure to review the Best Practices Regarding Evidence in Arbitration, or some similar treatise.
#4: Know your arbitrator
Another dissimilarity between arbitrations and court cases is that in an arbitration, the parties will typically get to select the person who will preside over the proceeding.
Before you agree to any particular arbitrator, be sure to do thorough research on the available options. Try to find professionals who have specific expertise or who have perspectives that are in line with your client’s position.
Note also that some arbitrators lean towards a particular type of resolution or exhibit specific tendencies in their decision-making process.
If you’re dealing with retired judges, you should be able to research how they’ve ruled on similar issues in the past. Obviously, if they tend to decide issues contrary to your client’s position, you’ll want to choose someone else.
#5: Prepare your client
Unless your client has been involved in many similar disputes in the past, they’re probably even less familiar with the arbitration process than you are.
Don’t be afraid to seek advice and counsel from an older mentor in getting your client ready, if need be. What ultimately matters is that your client is not only prepared to be a good witness at the arbitration, but that they also know what to expect out of the entire process.
Clients may be tempted to be more relaxed during arbitration than in a court setting.
That can be a good thing, but make sure they’re also prepared to treat the venue and the process with the gravity it deserves.
You might even consider conducting a mock arbitration session ahead of time in order to prepare your client for the procedure and any potential questions they might face from the arbitrator or opposing counsel on the big day.
#6: Draft the opening statement
Depending on the rules of your particular arbitration, you may be called upon to deliver an opening statement on your client’s behalf.
Don’t underestimate the importance of this formality. Your opening statement can really set the tone for the entire procedure, and it gives you the opportunity to favorably frame the important issues for the arbitrator.
Indeed, the arbitrator will be highly appreciative if your compelling opening statement simply outlines the core issues, concisely sets forth the relevant laws, and briefly explains why the arbitrator should rule in your client’s favor.
Remember, this is not a time for argument or conjecture. It is an opportunity to make the case understandable for the person overseeing the proceeding.
As with a regular trial, you’ll want to practice your opening statement multiple times to ensure clarity, focus, and impact.
#7: Manage the hearing day
Clients are not the only ones who are tempted to treat arbitration as a casual affair. Attorneys often do the same thing to their own peril.
Don’t make that rookie mistake.
Be sure to arrive early to set up and review your notes and documents one last time.
Even though the hearing is usually less formal than a trial, it still demands the same level of preparedness and professionalism.
For example, keep all of your essential documents readily accessible, make sure your clients are ready (and presentable), and maintain a composed demeanor throughout the hearing.
The more arbitrations you get under your belt, the more you may grow to like this particular type of proceeding. And, so long as you treat arbitrations with the same level of seriousness that you do trials, these opportunities will go a long way toward making you a more effective litigator.
For more tips and tricks on how to enhance your legal career, be sure to visit the Professional Growth section of InfoTrack’s blog.
