In arbitration, the rules are not prescriptive; they are the default. Most arbitrators will defer to reasonable joint requests to modify the default rules throughout the arbitration. Skilled advocates in arbitration know how to negotiate with the other side to exploit this flexibility and to shape a bespoke process best suited for the presentation of their own side’s case in each unique dispute.
The “Meet and Confer”
With increasing regularity, arbitrators will encourage, request, or order the parties to meet and confer on any number of issues, beginning with the initial preliminary conference. Arbitration is neither the court’s process nor the arbitrator’s process. Indeed, it is the parties’ process. When they agree, parties can modify time limits, the scope of discovery, the treatment of evidence, etc. Parties have a voice in when and how long a hearing will last and how evidence and witnesses will be managed, the management of confidential and sensitive information, and the cost. Among the adjustments litigators must make when arbitrating a matter rather than litigating in court is whether and how to navigate the “meet and confer.” Some litigators, who are accustomed to rigid courtroom rules and timelines, can be uncomfortable when those guardrails are removed and often fail to exploit this opportunity to their full advantage.
Tips to Help You Succeed
The secret to the meet and confer is, first, to take advantage of it. Counsel need not wait to be ordered to confer. Experienced arbitration counsel will take the initiative and reach out to their adversaries as soon as is practicable. This can be before the initial prehearing conference.
Sophisticated arbitration counsel understand the importance of the meet and confer and may need to educate adversaries who are less familiar with arbitration.
While arbitration advocates are less likely to be reluctant about consulting with the other side, they may nevertheless treat the process with less thought and advance preparation than they should. At its essence, each meet and confer presents an opportunity to apply the full range of negotiation tools and theory. Given the likely range of possible issues to negotiate, a meet and confer is an opportunity to seek mutually beneficial solutions.
As with any negotiation, it is helpful to build trust and rapport. Litigators unfamiliar with arbitration may approach all aspects of an arbitration as warfare and all encounters with the other side as adversarial. This is a subtle, but important, distinction between litigation in court and arbitration. In arbitration, you need rapport and trust to understand and address your adversary’s process priorities. In a negotiation, you cannot just take what you want. You must both agree. Studies repeatedly find we are all more likely to say yes to people we like. Said the other way, your adversary is more likely to say no to your process requests if you are overly aggressive and adversarial. Unpleasant confrontations with your adversary during the prehearing phase will all but eliminate your opportunity to shape your arbitration process throughout.
Reaching agreement with your adversary before your initial prehearing will also enhance your credibility with your arbitrator. It is not advisable for you to engage in aggressive histrionics and unreasonable behavior before your trier of fact during the prehearing stage. You will not have a fresh set of eyes as you would when you litigate before a jury. An arbitrator is a sophisticated businessperson, expert, or lawyer who has been selected for his or her professional reputation and arbitration experience. An obstreperous approach can seriously and irreparably damage your credibility.
Understand that your meet and confer is an integrative negotiation, which is a negotiation where there are multiple issues to be resolved, as distinguished from a distributive negotiation—settling a lawsuit for example—where the primary and singular consideration is money. In planning for the initial prehearing, there will be considerations of, among other things, the date and length of the arbitration, modification of rules, dispositive motions, depositions (scope and scheduling), modifications or amendments of pleadings, confidentiality and protective orders, protocols for electronically stored information, expert discovery, and final evidentiary hearing procedures such as the management of exhibits, pre- and post-briefing, bifurcation of any issues, and treatment of witnesses, including remote testimony.
As you plan for your negotiation with your adversary, consider whether there is information about your case you need to help you prepare. When ready, consider all the items to be resolved, and rank them. Try to determine how your own priorities might compare or contrast with those of the other side. To the extent your priorities are complementary, you can logroll—e.g., trade items you value more for items they value less and offer items you value less in exchange for satisfying the other side’s priorities.
Employ cognitive persuasion techniques such as reciprocity. As you make concessions of those items you value least, insist on concessions in return. If you do not value it, they will not value your concession. Combining your concessions with your adversary’s inclination to reciprocate will help you negotiate for your priorities.
Be prepared to articulate those standards and norms that will support your desired results. Anticipate any norms and standards your adversary might raise, and be further prepared to distinguish them from the instant situation. Providing an objective rationale to support your positions will help you persuade your adversary of the reasonableness of those positions.
Most litigators understand that cases can be won and lost on process. The ability to shape the process through a meet and confer with the other side is an opportunity and a responsibility. Embracing this opportunity and treating it with the significance it merits can help you to ultimately win your case.