Too often, advocates approach arbitration with the same practice techniques they use in courtroom litigation—an exercise that often results in high cost and inefficiency. They overlook the nuances and differences the arbitration forum provides and, in so doing, they miss the opportunity to present their case in a more advantageous and cost-efficient manner. To effectively and expeditiously achieve their clients’ goals, advocates should recognize and exploit the differences between litigation and arbitration.
First, advocates should recognize that in the business-to-business arena, arbitration is a dispute resolution process resulting from a negotiated agreement. In making that agreement, the parties were willing to trade off some procedural protections available in court such as full discovery, strict adherence to evidentiary exclusions, and opportunity for appeal in return for a faster, binding, and more efficient result.