An Attorney's Guide to Arbitration

Introduction

Preparing for Arbitration is a lot like preparing for Trial. Preparation is an important key to quick and effective arbitration. This material contains suggestions that can make arbitration a profitable experience for you and your client. Remember, a happy client is one that will refer you future business.

Your Role in Arbitration

An attorney can play three different roles in a Arbitration. First, is the preparation of documents and other materials that your client should take to arbitration. This can be important to effective use of the parties time. For example, it is hard to discuss the provisions of a contract if no one has a copy of it. In addition, good charts or summaries can help each of the parties, as well as the mediator, to clearly understand the nature of the dispute. Second, is the preparation of your client for arbitration. This can make the client feel more comfortable with the process and ensure that your client can use the process effectively in getting his or her needs met. Finally, the attorney can be an actual participant in the arbitration process. More will be spoken regarding each of these roles below.

Preparation of Materials

There are certain materials that need to be gathered in all arbitration cases arising out of litigation. The arbiter should be provided prior to the first session the following: (a) Copies of all legal pleadings in the case. (b) Copies of all documents that may have a bearing on the dispute. (c) A clear honest statement of facts that identifies which facts are disputed. (d) A clear statement of the legal issues on both sides, the elements of those issues, any defenses to the elements, and where the dispute lies. (e) A clear statement of the relief you are seeking and the basis for that relief including any necessary mathematical calculations. And (f) A list of who will be present and their relationship to the case.

You may also prepare any additional materials that you believe would be helpful to your client in presenting their side of the matter, including charts, graphs, or summaries. It can also be helpful to the mediator is you can provide him with information on the background and temperament of your client prior to the first session. This will help the mediator to effectively communicate with your client and ensure that each of the parties participate effectively in the process.

In addition to the material indicated above, there is a Domestic Questionnaire that should be completed and returned to the Arbiter prior to the first session in Domestic Cases. If you would like to download a copy of that Questionnaire, click here. Your client must also provide documentation verifying their actual income.

Preparing Your Client For Arbitration

There are a number of steps to properly preparing your client for arbitration. Each will be discussed below.

First, you should explain to your client the process of arbitration. At the beginning of the first arbitration session, the mediator will give a detailed explanation and overview of the process that will be followed. However, it is helpful if the client has some idea of what to expect before they come. You may wish to review A Client's Guide to Arbitration with them.

Second, you should review all of the legal issues in the case with your client. They need to know that in a court hearing the facts will be determined based upon "admissible" evidence. These facts will then determine who wins and loses on each of the elements of each issue that is before the court. The result of a trial is not necessarily what is "right" or "fair", but what the judge determines to be the "law" based upon the facts admitted into evidence. It is important that you explain the "black letter" law to your client and clearly indicate where the court or another attorney may disagree with your opinion of the law. Not much is worse in arbitration than a client with false expectations based upon a misunderstanding of the law. If for some reason you may have given a false expectation to a client or they refuse to understand your explanations of the law and you want the arbiter to "fix" this, you need to let him know in advance so that it can be handled tactfully.

Third, you should do a detailed risk analysis with you client. They need an honest indication of their percentage likelihood of winning on each element of each issue on both sides, and its impact upon the eventual result. As part of your risk analysis you should also discuss the cost of litigation, the time involved including appeal, whether there are any costs or risks associated with delay, the emotional costs of litigation, whether a judgment would be enforceable or likely to be obeyed by the other party; and the concept of uncertainty as it applies to: the personality, credibility, and availability of the judge, jury, witnesses, parties, and attorneys.

Fourth, you should spend some time determining your client's issues that go beyond the legal ones. In arbitration we usually go beyond the legal issues to the actual needs and interests of the parties in an attempt to meet them. Arbitrated rulings are more successful that court imposed rulings because the solution can be tailored to the "real world" in which the parties live. It is important before they come to arbitration to take some time to think through what their actual needs, wants, and goals are.

Fifth, you should explore with your client any creative ideas for resolving the dispute, no matter how unlikely they may seem. Your client needs to come into arbitration with a win/win mind set. The best solutions are those in which both parties have their needs (not necessarily their positions or wants) met. Your client should think of ways that he or she might meet the needs of the other party, so that their own needs are more likely to be met. They should also consider any possible concessions or tradeoffs that might be appropriate.

And finally, you should review the arbitration contract and obtain a commitment from your client to follow the ground rules of arbitration and to participate meaningfully in the process. If they are to be successful in their arbitration efforts there are a few important keys: (a) They must be truthful in their presentation in regard to the facts. Exaggeration, hearsay, or supposition should be avoided as effective arbitration is based upon trust and truth. (b) Full disclosure is important. The best solutions are to be found when all of the facts are known. (c) During arbitration they should be on their best behavior and act as if they are in front of a Judge or Jury. They should never argue, whine, complain, or attack the other party. It diminishes their effectiveness. However, it is proper for them to express their feelings about an issue. (d) They need to go to arbitration with the attitude that they are really going to try to make it work. And (e) They should listen carefully to everything that is said by the other party. Often those statements will provide clues to the solution of the problem. You should also add any other instructions that you deem appropriate.

Direct Participation

One of the important decisions you must make is whether to attend the arbitration. There are some pro's and con's to each approach, depending upon the type of arbitration and the nature of the dispute. The benefits of attorney participation include: (a) immediate explanations of legal issues that may arise, (b) immediate explanation of complex concepts, (c) a feeling of security for a weaker party, (d) clear communication when there are language barriers, and (e) immediate review of proposals. Attorney participation tends to work better in complex cases, commercial matters, personal injury, or insurance cases). The down sides include: (a) greater expense to the client, (b) greater time requirements, (c) a tendency to greater formality, (d) a hesitancy of the parties to disclose feelings, needs, weaknesses, or very private matters in front of counsel. Attorney participation is not as effective in domestic cases or highly emotional disputes. If one attorney is present, generally both parties should have an attorney.

The attorney may participate in a number of ways. For example, the arbitrator could ask each of the attorneys to give a brief recitation of the facts and issues at the beginning of the process. After handling a few preliminary matters, you could depart. Second, you may proffer your clients testimony after which the arbiter may ask additional questions of your client. Or third, you may handle the arbitration just like a regular legal trial.