Making the Arbitrator’s Job Easier, 0917 COBJ, Vol. 46, No. 8 Pg. 32
August, 2017
ALTERNATIVE DISPUTE RESOLUTION
This article offers suggestions to help counsel achieve cost-effective and successful arbitrations by making the arbitrator’s job easier.
These days, few civil litigators are strangers to arbitration because contractual provisions to arbitrate are common. Put simply, in arbitration the parties have contractually agreed to bring disputes before one decision maker or a panel of three private decision-makers rather than before a judge or jury.
This article describes ways counsel can make the arbitrator’s job easier to facilitate a prompt and successful result at less cost.
Why Focus on Helping the Arbitrator?
Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.
First, arbitration is meant to be an efficient means of dispute resolution. All too often, though, parties complain that the arbitration took as long as it would have taken to litigate the case in court. In most cases, it should not be that way. The suggestions below will help counsel achieve a prompt resolution of the client’s problem.
Second, arbitrators cost money. Arbitrators typically are paid an hourly rate. Tat cost is multiplied for a three-member panel. On top of that, the client must pay the attorney for time spent on the case. The suggestions discussed below help the arbitrator and counsel spend less time on the case, and thus save the client money.
Third, to paraphrase a maxim more often said about moms: “If your arbitrator ain’t happy, ain’t nobody happy.” If parties are in arbitration, they have taken the time to select a qualified and impartial neutral. Arbitrators take seriously their obligation to consider the evidence fairly and decide the case according to the law and the evidence. However, a lawyer who is disorganized or unduly combative not only makes the arbitrator unhappy, but may be damaging the client’s case as well. Such counsel is asking the arbitrator to rule in favor of the client in spite of himself. Don’t do that. Instead, practice in a way that makes it easy for the arbitrator to look favorably upon the client’s case.
A few caveats are important to note here:
■ Arbitrators have different styles and opinions. For example, some like to follow the rules of civil procedure as closely as possible, and some apply the rules of evidence more strictly than others. Know the arbitrator and modify these suggestions accordingly.
■ The author’s views are her own and are not made on behalf of any alternative dispute resolution organization.
■ No criticisms should be taken personally. The author’s experiences as an arbitrator reveal that most counsel are professional, present their cases well, and are a pleasure to work with.
■ While the suggestions in this article are also applicable to cases before judges, the author has never been a judge.
Suggestions for Facilitating Arbitrations
Arbitration should be a fair, efficient, and economical means of resolving disputes...
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