Blueprint for Success: Strategic Preparation for Arbitration Preliminary Hearings

In arbitration, the preliminary hearing is an advocate’s first—and often best—opportunity to set the tone for an efficient and successful proceeding. Whether the hearing is held over the phone, on Zoom, or in person, preparation is key. This article proposes actions that counsel can take to increase the efficiency and effectiveness of the event.

Understand the Framework

Before stepping into the preliminary hearing, counsel should dig into and clarify, if needed, several foundational aspects of the arbitration. First, determine which arbitration rules govern the case, as these will influence the procedural framework. Next, identify the applicable substantive and procedural law, whether from a particular state or country, as this will affect key legal interpretations and procedural requirements. Finally, review your arbitration clause carefully to see if it imposes any deadlines, restricts available relief, or provides for other procedural requirements that may differ from the applicable rules. Gaining a clear understanding of these elements early will shape the rest of your strategy and helps avoid procedural surprises later in the proceeding.

Prepare with Purpose

Counsel for the parties should meet and confer prior to the preliminary hearing with the arbitrator (assuming a single arbitrator for the sake of this article) to agree on, as much as possible, a proposed scheduling order, discuss key procedural issues such as discovery limits and motion practice, and prepare a list of available hearing dates that takes into account the availability of clients and witnesses. It is especially important to confirm the availability of essential participants early, particularly if counsel anticipate those participants’ virtual or in-person hearing testimony. Many arbitrators and arbitral institutions offer templates for initial scheduling orders, as well as checklists or sample agendas, to help streamline and focus these discussions. Taking a collaborative approach at this stage can ease the burden on the arbitrator and lead to meaningful time and cost efficiencies for all parties involved.

Clarify the Claims and Parties

Confirm that all parties have consented to arbitration, whether through an arbitration agreement or in some other manner—especially in multiparty or multi-contract disputes. Are there additional parties you may need to bring in by joinder or consolidation? It’s better to address this early in the process, as jurisdictional disputes and adding additional parties can have an impact on the exchange of information and scheduling.

Ensure that the scope of claims and relief sought are clearly identified. Arbitration rules may not permit changes in claims or counterclaims after the arbitrator is appointed without the arbitrator’s explicit permission, and such changes can affect the exchange of information or filing fees.

Streamline the Information Exchange: Less Is More

Arbitration is not litigation, and counsel should not approach arbitration with a litigation mindset. Unlike discovery in traditional court proceedings, discovery in arbitration is often limited: Depositions typically require agreement between the parties or an order of the arbitrator and are rare in most cases. Document requests should be narrowly tailored, and tools like interrogatories and requests for admission are often disallowed altogether. Arbitrators generally emphasize efficiency and relevance, so it is important to focus only on materials that are truly essential to the case. Embracing the streamlined nature of arbitration can help keep the process cost-effective and on track.

When it comes to the discovery of electronically stored information (ESI), it is important for counsel to seek agreement on key issues such as search terms, production formats, and deadlines for exchanging materials. Establishing clear protocols for handling ESI, including procedures for inadvertent disclosures and clawbacks, can help streamline the process and prevent later disputes. If disagreements arise, escalate them promptly to the arbitrator to avoid unnecessary delays. Most disputes around information exchange are handled quickly by an exchange of brief position statements or a quick call with the arbitrator to keep the case schedule on track. Keep in mind that arbitrators may allocate costs if they determine that a party has pursued excessive or unreasonable discovery requests.

Plan for Nonparties and Dispositive Motions

Don’t assume you can compel nonparties to produce documents or appear at a deposition prehearing. Statutes vary. Sometimes, third-party testimony can be secured only at the final hearing. If needed, you may be able to schedule mini-hearings or build time into the schedule for subpoena enforcement.

Many rules sets require you to request permission to file a dispositive motion, set realistic timelines, and be prepared to show why the motion promotes efficiency. Arbitrators are unlikely to allow for briefing of dispositive motions that do not save hearing time and money.

Structure the Hearing

• Decide how testimony will be presented—live, virtual, or written direct statements (with witnesses available for cross-examination). Will there be a stenographic record? Transcription by artificial intelligence?
• Identify witnesses and experts. Will you use advance written witness statements to streamline proceedings? Some arbitrators may even encourage “hot-tubbing” competing experts. In arbitration, “hot-tubbing” (or witness conferencing) is a process where expert witnesses give evidence together, responding to questions and each other in real time.
• Coordinate joint exhibits to reduce duplication and discuss the format and organization. Some panels prefer electronic files; others like hard copies or a chronological sequence.

Allow for Final Touches

Plan for status conferences peppered throughout the case schedule to address discovery progress, administrative concerns, and hearing logistics. You should also set the rules for communication with the arbitrator—there is no ex parte contact, and arbitrators generally don’t want to be copied on service of discovery requests or responses unless (and until) a dispute arises.

Discuss Briefing and Award Formats

Do the parties or the arbitrator want prehearing briefs? These can be helpful to educate the arbitrator and set the stage for the hearing. Include references to evidence and witnesses. Follow page limits and format requirements strictly.

You should also have early discussions with the arbitrator as to whether post-hearing briefs or oral arguments will be needed. Timing matters—addressing these issues during the preliminary hearing avoids delays and disputes later.

Decide early if a simple award, a reasoned decision, or full findings of fact and law will be required. This affects both the arbitrator’s workload and the parties’ expectations of the cost of writing the award.

Final Thought

You get only one chance to make a first impression in arbitration. Use the preliminary hearing to create a clear road map, minimize conflict, and foster a spirit of collaboration with the arbitrator and opposing counsel. Mastering this early step can pave the way for a smoother—and more efficient—arbitration.