Many businesses and contracts provide for mandatory arbitration of disputes in lieu of or prior to filing a lawsuit. While arbitration sometimes provides a quicker and less expensive way to resolve a dispute, parties need to be aware of the differences and some of the pitfalls of an arbitration, including:
- The Arbitration Clause. As this sets the rules for arbitrating a dispute, it is critical that it is both understood and favorable to reaching a resolution, whether the details are in the contract or promulgated by the arbitration service selected.
- Know Your Arbitrator. Choose your arbitrator(s) only after due diligence, investigating their background and propensities in order to avoid surprises.
- Evaluate Claims and Eliminate Weak Ones. Generally, an arbitrator is an expert in the industry or the issue, and credibility is critical. Promoting weak or too many claims could detract from your stronger and more significant ones.
- Pre-hearing Discovery. The rules of your arbitration will provide what discovery, if any, is allowed, often much less than in a lawsuit, so be prepared.
- Organize Evidence. Contemporaneous documents exchanged or agreed to before a dispute arose are persuasive, as are clear and concise demonstrative and documentary exhibits, all of which need to be well organized and properly presented.
- Be Flexible. Parties to an arbitration can call witnesses multiple times, so focus on particular issues one at a time and waive evidence rules. Do not hesitate to suggest issues, witnesses or evidence be presented in an order most favorable to you.
- Post-Hearing Obligations. Provide the arbitrator with clear, concise and well substantiated closing arguments, exhibits and proposed findings.
The attorneys at Brooks, Tarulis & Tibble, LLC have substantial experience representing parties in arbitrations and trials. Please call us with any questions or issues.
