By: Andrew Barton, vice president, trade department at AAA-ICDR; Iman Haider Elise, Vice President, construction department at AAA-ICDR; and Lisa Romeo, vice president, trade department at (American Arbitration Association )AAA-ICDR
The unique advantages of Arbitration are often lost when representatives of legal parties, or lawyers, approach it with the same mentality as traditional court proceedings. Advocacy is a crucial skill in the legal profession, especially in arbitration. Arbitration provides a distinct method of dispute resolution that requires lawyers to use a unique set of skills and strategies.
Among these skills, the ability to switch from traditional litigation to arbitration is fundamental. Mastering this mental transformation is necessary to achieve positive results in arbitration cases. This article focuses on how lawyers can effectively navigate the arbitration field by adopting a different approach.
Embrace flexibility
One of the biggest differences between litigation and arbitration is the level of flexibility involved. Flexibility in arbitration can be a powerful advantage of a lawyer, allowing him to more quickly address the essence of the dispute instead of drowning in the intricacies of the proceedings.
Litigation follows a strict structure imposed by the court, while arbitration allows a more personalized approach to resolving specific disputes. Lawyers must be prepared to navigate through this flexibility, adapting their strategies to meet the unique requirements of each case. While the ultimate goal may be the same—presenting a winning case to their client-the methods for achieving this can vary significantly in arbitration compared to in court.
Customize actions
Unlike standard procedures in litigation, arbitration allows the parties to customize the rules of procedure for their own needs. This may include agreeing on timelines, determining the scope of discovery, and making decisions on the presentation of evidence. Lawyers must be adept at negotiating these procedural aspects to achieve the best interests of their clients.
The rules of discovery and evidence usually do not apply to arbitration, enabling the parties and lawyers to customize the exchange of information. Discovery in arbitration is usually simplified, so lawyers should be strategic and focused in their requests. Evidence is generally accepted without the need to lay an expanded Foundation, which leads to increased efficiency.
The practice of requests in arbitration is often limited to the exchange of information, although arbitrators may consider decisive requests and requests for temporary relief where appropriate. Lawyers must prove that any proposed decisive application is likely to succeed and contribute to the efficiency of the case.
Hearings in arbitration are more informal, more often they are held in conference rooms or even virtually, rather than in court. The testimony of witnesses may be provided by affidavits or statements, with the session time allocated for cross-examination, which leads to time and cost savings.
The wording and cost of the final decision are also within the control of lawyers. Usually discussed during the preliminary hearing, awards can be customized to meet the needs of the parties, from a simple decision to a detailed and reinforced decision or even a comprehensive award that includes the facts and legal consequences.
Adapt to different arbitration rules
Different arbitration institutions have diverse rules and procedures. Lawyers need to familiarize themselves with the specific rules of the Arbitration Forum in question, whether it is AAA or another provider, and understand if the set of rules for a particular industry applies, such as construction, healthcare, etc. Understanding these rules is essential to effectively manage the arbitration process.
Consider your audience
One of the main differences between arbitration and litigation is the audience to which lawyers address their arguments. Unlike a jury or a judge who may not have subject matter experience, arbitrators are usually well versed in the topic at hand. Lawyers can thus bypass the extended explanation and focus directly on the substantive issues. The arbitrator will probably appreciate an analytical approach based on logic, while lawyers in litigation may seek to make a more emotional appeal to the jury.
Choose your “Judge”
In most cases, lawyers have the opportunity to choose an arbitrator. Unlike litigation, where a judge is appointed, the parties can decide whether subject matter or legal expertise is more important in resolving the dispute.
