September 01, 2013

Arbitration for the Trial Lawyer

With the importance of alternative dispute resolution growing, this overview prepares litigators for the nitty-gritty of arbitration.

Jeffery D. Ubersax

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Sooner or later, every trial lawyer with a commercial practice will end up in an arbitration. Perhaps the most likely scenario is a contract dispute between parties that have agreed to mandatory arbitration with a specified alternative dispute resolution provider, most commonly the American Arbitration Association (AAA). Your client asks you to handle the matter, but you have no experience with arbitration. Not to worry—there is nothing in the process that a good trial lawyer isn’t fully equipped to handle. This is an overview of the AAA process and some advice on how to navigate it successfully.

In general, an arbitration is like a fast-tracked civil case that gets tried to the bench with little discovery, no rules of evidence, and an extremely limited right of appeal. The whole prehearing process is much less rule-driven than a civil case; there are no discovery rules, for example, and no rules on motion practice. Instead, there is only a general framework within which the parties and the arbitrators have wide latitude to tailor the proceedings to the circumstances. An arbitration hearing itself is not so different from a civil bench trial, except for the absence of evidentiary objections (which would have little role anyway in a typical contract case tried to the court) and a less formal atmosphere.

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