Today’s post comes from Hon. Karen Brown Willcutts (Former), a former associate judge for Dallas County and JAMS arbitrator, mediator and special master who specializes in resolving business/commercial and employment disputes.
Arbitration—does it save time and money? Or are recent criticisms that it does neither true?
That’s largely up to the parties to determine. There are six steps attorneys can follow in order to take control of the process and set realistic expectations for cost-conscious clients along the way.
Be realistic and involve the client from the outset
Sometimes, reality does not meet client expectations. Be sure to spot potential problems—such as an overly restrictive arbitration clause in a complex dispute—early in the process to discuss with opposing counsel and perhaps agree to change to a more practical framework. Doing so can help avoid unrealistic hopes that a complicated and high-dollar dispute can be resolved in the same fashion as a simpler, lower-stakes case.
Consider expedited procedures
Other times, agreeing on expedited rules and procedures with opposing counsel when a contract does not specify them can make a lot of sense in certain types of disputes.
Cooperate in discovery
This can greatly increase efficiency and reduce costs. If rules require voluntary production of documents, do it. Make a good faith effort to resolve discovery disputes with the opposing party before filing motions to compel. And work cooperatively to devise a plan with the arbitrator to produce the most relevant documents first, after which any party seeking more documents must convince the arbitrator through additional requests.
Limit dispositive motions
Arbitrators can be reluctant to grant dispositive motions because parties in arbitrations don’t have the right to appeal. Unless filed to address true questions of law, dispositive motions are often not worth the extra time and cost.
Make it easy for the arbitrator to rule in your favor
Help the arbitrator write a reasoned award in your favor. Clearly state causes of action and omit bogus claims or defenses, and provide these concise points to the arbitrator in a pre-hearing brief. Also consider submitting a proposed award in an editable document for the arbitrator to help draft the final award.
Arbitration can be a cost-effective and time-saving means of resolving business disputes in a private and relatively controlled environment. These benefits can be achieved with advance planning, cooperation and hard work.
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