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Tips for Advocates in Arbitration
As a neutral and (once upon a time) as a lawyer representing clients in arbitration, I have noticed that much of the lawyer's discomfort in an arbitration proceeding originates in his or her unfamiliarity with the process. I also notice that lawyers who would not hesitate to visit the courthouse, talk with the clerk, and study the local rules when appearing in an unfamiliar court, seem strangely reluctant to take the equivalent steps when representing a client in arbitration.
Thus, here are some tips for the lawyer who is new to arbitral proceedings. While nothing is a substitute for actual experience, making use of the following tips will make the lawyer less apprehensive and a more effective advocate.
Tip Number 1: Know the enabling statutes. There are three: the Federal Arbitration Act (FAA), the Uniform Arbitration Act (UAA), and the Revised Uniform Arbitration Act. While these statutes are similar in many respects, they differ in others, and especially in the way the courts interpret them. Exactly which law applies will determine issues as varied as the arbitrator's jurisdiction and the availability of deposition subpoenas for third parties. It's important to know which one or ones apply to your case.
Tip Number 2. Know the rules applicable to the Arbitration Agreement that governs your case. The American Arbitration Association, for example, has different rules for construction, commercial, labor (union contract), employment (other labor), and consumer disputes. Other arbitration administrators, such as the National Arbitration Forum, likewise have different rules for various claims. These rules will tell you things like how much discovery you can get and the form of the arbitration award you can expect at the end. You need to know them going in.
It also helps to know the process from the neutral's perspective. Take a look at publications like The College of Commercial Arbitrators' Guide to Best Practices in Commercial Arbitration and the American Arbitration Association Handbook on Commercial Arbitration. Your arbitrator will have read and been influenced by these publications. If you take a look at them, you'll get a valuable insight into what your neutral wants from the lawyers.
Tip Number 3. Pick your arbitrator carefully. In arbitration, you have some say so in whom your judge or judges will be. Picking an arbitrator is a second cousin to picking a jury. Take selection seriously. Study the resumes you will receive from the administrator. Read the arbitrator's disclosures. They're important. They will not only tell you whether there is any possibility of bias, but also the candidate's level of expertise in the subject matter of the case, and his or her level of experience as a neutral. If you know someone in the city where the candidate lives, pick up the telephone and make a call or two. The due diligence will pay off.
Tip Number 4. Know your administrator. Most arbitrations are administered by organizations that craft rules and provide neutrals. I've mentioned two above. There are others. They are there not only to make sure the parties follow the rules and pay the fees, but to help the parties and their counsel through the process. Their staffs are there to help. You can ask them "how to" and what is usually done. The advocate shouldn't be shy about doing so.
Tip Number 5. Be creative and cooperative. Call your opposing counsel and agree on discovery, especially if you want to vary what the rules provide. Get an agreement to exchange summaries of witness testimony. If you can't get an agreement, ask the arbitrator to order it. Consider nontraditional ways to present testimony, such as an expert who gives a presentation rather than answering questions on direct examination.
Tip Number 6. Pay attention to location. Typically, the parties are asked to find a venue for the arbitration hearing. Anyone who has spent any time in a cramped hearing room or court room, or in taking a deposition in a doctor's office with a file in one's lap, knows that location matters. Especially in a multi-day hearing, a comfortable hearing room improves the quality of the presentations, makes the witnesses more at ease, and makes the presentation of exhibits, especially demonstrative exhibits, much easier.
A hearing is a type of trial. A certain level of tension comes with it. The tension is heightened when the parties are sitting in each other's lap. So, while you can, and may have to, hold a hearing in a hotel conference room, it's a good idea to look for larger and more user-friendly locations. Sometimes an unused courtroom will be available. Some colleges will permit the use of lecture rooms and let you move tables around.
Ask the arbitrator what he or she prefers, or even to suggest a location. You'll be glad you did.
If handled correctly, arbitration really can save time and money. It can, and does, reach fair decisions. The advocate who is determined to learn and embrace rather than resist the process will be ahead of the game.
1. 9 U.S.C. § 1 et seq.
2. Codified in Tennessee as Tenn. Code Ann. § 29-5-301 et seq.
3. Adopted in 19 states, but not in Tennessee.
4. Buckeye Check Cashing Inc. v. John Cardegna, et al. 546 U.S. 44, 126 S. Ct. 1204 (2006); Frizzle Construction Co. v. Gatlinburg LLC, 9 S.W. 3d 79, 83-84, (Tenn. 1999); Life Receivables Trust v. Syndicate 102 at Lloyd's of London, No. 07-1197-CV, 2008 WL 4978550 (2d Cir. Nov. 25, 2008).
5. The rules can be found at www.adr.org.
8. Von Kann et al., JurisNet LLC (2006).
9. Carbonneau and Jaeggi, JurisNet (2006).
10. The Judicial Arbitration and Mediation Society (JAMS), the Financial Industry Regulatory Authority (FINRA), and the Federal Mediation and Arbitration Service (FMAS), among others.ê†±
ROBERT L. ARRINGTON is shareholder and chairman of executive committee with Wilson Worley Moore Gamble & Stout in Kingsport. He received his law and bachelor’s degrees from the University of North Carolina, Chapel Hill. Arrington is a member of the American Arbitration Association’s Roster of Neutrals for arbitration of commercial and employment disputes, and is a member of the Panel of Neutrals of the National Arbitration Forum. He is listed with the Tennessee Supreme Court’s Commission on Alternative Dispute Resolution as a Rule 31 Civil Mediator. He is also a member of the panel of court approved arbitrators and mediators for the United States District Court for the Eastern District of Tennessee.