Pre-Arbitration Preparation -- Being a Better Advocate

Richard B. Lord, a shareholder with Upchurch Watson White & Max, is a fellow of the American College of Civil Trial Mediators and co-Chair of the ABA Dispute Resolution Section’s Mediation Commitee . To schedule a mediation with Richard, please visit our online scheduling page or call his case manager, Cathy McCleary, at 800-863-1462.

Shareholder Richard Lord Florida Mediator Richard Lord

Efficient arbitration serves the interests of the parties in arbitration. Attorneys and arbitrators should understand what facilitates that goal of efficiency in order to reach it.

Counsel should, right out of the box, provide all foundational documents governing the fact there will be an arbitration, such as the agreement or order to arbitrate. Then,  on the preliminary case management call, counsel should be prepared to discuss the structure, rules, anticipated motions, dates, the need for third-party subpoenas and authority and geographic implications, discovery expectations, how discovery is to be produced and other issues.

Give serious thought to having your client on the first conference call. In setting dates, be realistic. Unrealistic time frames increase the odds of disputes about the conduct of discovery and continuances, and those disputes cost. Counsel should subsequently work expeditiously to set out dates, with the exception of the hearing date, to which all agreed in the initial conference. Then, if you want your plan made part of an order, let your arbitrator(s) know. Once matters are ordered or stipulated, changes should, absent exceptional circumstances, be made only with mutual consent.

Counsel must work cooperatively to resolve all disputes including those about discovery. The point of all of this is the need for communication, planning and clarity.

If you have a contract that adopts cumbersome rules or requirements, discuss modifying to save time and money. And do you want a reasoned award, or do your clients want to pay for one?

Witness and exhibit lists should be provided to the panel 14 days before the final hearing. Statements of issues to be decided, statement of case and stipulated facts should be in your arbitrator's hands one week in advance. Also provide a proposed form of decision.

These are takeaways from Friday's "Effective Advocacy and Management in Arbitration" session at our ABA Dispute Resolution Spring Conference in Seattle.

What will I likely do differently as an arbitrator? Send you (counsel)  a proposed agenda for the preliminary call. When you get it, let me know if you want something else added. If it will enhance efficiency and improve planning, it should be included.

And it should not have to be restated, but it does: Don't conduct yourself as though arbitration is simply another name for litigation. It isn't

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