The first time I sat in an arbitration was back in 1999. Since that time I’ve spent a significant amount of times in one arbitrator and three arbitrator hearings in both construction and employment cases. Here are some thoughts and considerations:
1. Not all arbitrators are created equal – do your due diligence
2. Arbitration provision usually will address how many arbitrators you have
3. Arbitration provision usually provides what outfit you use – they are different and have different rules and costs (AAA – JAMS – AHLA)
3. Scope of Discovery (Documents – Depositions – Third Parties) – this too could be provided for in the arbitration provision but will likely be up to your arbitrator(s)
4. Scope of Review – good luck reversing an arbitrator’s decision unless you have some type of appeal right
5. Who pays for what? (Attorneys’ Fees – Expert Fees – Arbitrator Fees – Filing Fees) – again look at the provision but also applicable rules
6. Duration of Discovery – Final Hearing – it should be faster and shorter than a lawsuit
7. Summary Judgments – sometimes arbitrators will consider them but look at your rules
8. Venue/Choice of Law – Where will the final hearing take place/what is applicable choice of law? Hopefully this is addressed in the applicable agreement
9. Duration of Final Hearing – Make this work for your client, this is supposed to a streamlined process
10. Openings? Closing? Briefings? – figure this out up front
11. Attorneys’ Fees Resolution – Testimony or Affidavit? Most lawyers don’t like to testify regarding fees but it stretches things out in terms of an award
12. End of Hearing versus Final Award – generally 30 days for a decision but if you have written closings or submit attorneys’ fees later it will take months more (no exaggeration)
13. Mediation Requirement? Does your agreement require mediation before filing for arbitration?
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