Arbitration’s unique advantages often are squandered when parties’ legal representatives, or advocates, approach it with the same mindset as traditional courtroom proceedings. Advocacy is a vital skill in the legal profession, particularly in arbitration. Arbitration offers a distinct method of dispute resolution that requires advocates to employ a unique set of skills and strategies.
Among these, the ability to shift mindsets from traditional litigation to arbitration is paramount. Mastering this mental shift is crucial for achieving favorable outcomes in arbitration cases. This post focuses on how advocates representing clients in arbitration can do so and therefore effectively navigate the arbitration terrain.
Embracing Flexibility
One of the most significant differences between litigation and arbitration is the level of flexibility involved. The flexibility of arbitration can be an advocate’s most powerful advantage, permitting one to more quickly address the core of the dispute rather than be bogged down in a procedural morass.
Litigation follows a rigid, court-mandated structure, whereas arbitration allows for a more tailored approach to resolving the specific disputes at hand. Advocates must be prepared to navigate this flexibility, adjusting their strategies to fit the unique demands of each case, as one size does not fit all when it comes to advocacy in disputes. While the ultimate goal may be the same—presenting a winning case for one’s client—the means to achieving that can differ substantially in arbitration instead of court.
Customizing Procedures. Unlike the standardized procedures of court litigation, arbitration permits parties to customize procedural rules to suit their specific needs. This could involve agreeing on timelines, determining the scope of discovery, and deciding on the presentation of evidence. Advocates must be adept at negotiating these procedural aspects to allow them to work in favor of their clients.
- State and federal rules of discovery and evidence generally do not apply in arbitration, allowing the parties and the advocates to tailor their information exchange. Because discovery in arbitration is substantially streamlined in most cases, advocates must be strategic and focused in their requests. Generally, evidence is admitted without requiring the laying of a foundation, providing a sizable efficiency.
- Motion practice in arbitration is often very limited, mostly around information exchange. However, where appropriate, arbitrators may consider dispositive motions as well as requests for interim relief. Advocates are required to demonstrate that any proposed dispositive motion has the likelihood to succeed and will contribute to the efficiency of the case.
- Hearings are more informal in arbitration, held in conference rooms or even virtually, rather than in a courtroom. Witness testimony may made by affidavit or declaration, with hearing time devoted to cross-examination, resulting in time and cost savings.
- The format (and cost) of the final decision are also in the hands of the advocates. Typically discussed during the preliminary hearing, awards can be tailored to the parties’ needs, ranging from a simple award of a few lines to a longer reasoned decision to a less-frequent, full-blown award with findings of fact and conclusions of law.
Adapting to Different Arbitration Rules. Different arbitration institutions have varying rules and procedures. Advocates need to familiarize themselves with the specific rules of the relevant arbitration forum, whether the AAA or some other provider, including if a particular industry’s rule set applies, such as Construction, Healthcare, etc. Understanding these rules is essential for effectively managing the arbitration process.
Considering Your Audience. One of the first differences between arbitration and litigation is the audience to whom advocates address their arguments. Rather than a jury or a judge who typically have little to no subject-matter expertise, arbitrators usually are well versed in the subject matter at hand. Accordingly, advocates will not have to spend time educating the adjudicator and instead can go straight to the crux of the issue. An arbitrator likely will appreciate a more analytical, logic-based approach, whereas in litigation, attorneys might strive for a more emotional appeal to a jury.
Choosing Your “Judge.” In most cases, advocates have the opportunity to select their arbitrator. Accordingly, unlike litigation, parties can decide if subject matter or legal expertise is more critical in the resolution of the dispute.
Emphasizing Speed and Efficiency
One of the key benefits of arbitration is its potential for a quicker resolution as compared to traditional litigation. Advocates must be adept at managing cases efficiently, ensuring that they are well prepared to move through the arbitration process swiftly while maintaining the quality of their advocacy.
Streamlined Processes: Arbitration often involves streamlined processes that eliminate many of the formalities and delays associated with court litigation. Advocates must be skilled in maximizing these streamlined procedures to expedite the resolution of disputes.
Efficient Case Management: Effective case management is critical in arbitration. Advocates need to be organized and proactive, managing timelines, submissions, and communications efficiently. This involves setting realistic deadlines, coordinating with arbitrators and opposing counsel, and ensuring that they meet all procedural requirements promptly.
Adopting a Collaborative Approach
While litigation is inherently adversarial, arbitration often encourages a more collaborative approach to dispute resolution. The most effective arbitrations are those where the parties together create a framework for the most efficient process possible, focusing on the contract, industry standards, and facts—a stark contrast to the traditional adversarial, motion-driven, and procedurally complex court process.
Working with the Opposing Party: Advocates must be willing to engage with each other in constructive dialogue and work towards mutually beneficial solutions. A collaborative approach involves being open to working with the opposing party to find common ground. This does not mean compromising on essential issues but rather being open to dialogue and negotiation. Effective advocates recognize that collaboration can lead to more efficient and satisfactory outcomes for all parties involved.
Negotiation and Mediation: Many arbitration cases involve opportunities for negotiation and mediation. Advocates should be skilled in these alternative dispute resolution (ADR) methods, using them to find common ground and resolve disputes amicably when possible.
Continuous Learning and Adaptation
The field of arbitration is dynamic and constantly evolving. Advocates must commit to continuous learning and professional development to stay abreast of the latest trends, rules, and practices.
Ongoing Education: Participating in seminars, workshops, and courses on arbitration can help advocates stay updated on the latest developments. This ongoing education is essential for refining advocacy skills and staying competitive.
Reflective Practice: Reflecting on past arbitration experiences allows advocates to identify areas for improvement and to adapt their strategies accordingly. This reflective practice is crucial for continuous growth and effectiveness in arbitration advocacy.
Conclusion
Shifting mindsets from traditional litigation to arbitration is a powerful tool in the hands of skilled advocates. By embracing flexibility, emphasizing speed and efficiency, adopting a collaborative approach, and committing to continuous learning, advocates can navigate the complexities of arbitration with confidence. This mindset shift not only enhances the effectiveness of the arbitration process but also ensures that advocates can achieve the best possible outcomes for their clients. The power of advocacy lies in its ability to transform the arbitration landscape, making it a more efficient, fair, and effective method of dispute resolution.
Reprinted by Permission, American Arbitration Association and the International Center for Dispute Resolution, AAA-ICDR® Blog, July 2024
Authors:
Andrew Barton, Vice President, AAA-ICDR Commercial Division
Iman Hyder-Eliz, AAA-IDCR Vice President Construction Division
Lisa Romeo, Vice President, AAA-ICDR Commercial Division