Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

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Five Biggest Surprises In The Arbitration Process (Blogiversary Listicle #4)

I am celebrating five years of blogging by publishing one “listicle” per day this week.  Monday, the topic was the five biggest surprises in arbitration law; Tuesday it was the five states most hostile to arbitration; Wednesday it was the five arbitration cases lawyers really ought to know.  Today, we leave case law behind and talk about the process of arbitration itself.  What are the biggest surprises for parties and advocates who find themselves in arbitration?

Five Biggest Surprises In The Arbitration Process

  1. No need for a “complaint” with numbered paragraphs or lengthy recitations to start the ball rolling.  (To start an arbitration proceeding, a claimant usually just needs to complete a form identifying the parties, the claim amount, and the type of dispute, with a copy of the arbitration agreement attached.  No Twiqbal standards, no formal service.)
  2. Parties are not obligated to keep arbitration proceedings confidential.  (If confidentiality is important to your client, ask the arbitrator(s) for a protective order.  Or insert a confidentiality requirement in your agreement.)
  3. Counsel may ask follow-up questions about potential arbitrators.  (Did the potential arbitrator disclose something that sounds fishy, but you don’t have enough information to know if it is fishy?  Come up with some follow-up questions and see if the answers bring any clarity.)
  4. Neither the rules of civil procedure nor the rules of evidence necessarily apply in arbitration.  (Only the rules of the arbitration administrator apply.  That means no one is entitled to serve requests for admission, or take depositions, or even to exclude hearsay from the record, unless those rules allow it or the arbitrator has given her blessing.)
  5. You can tailor the arbitration process to fit your case.  (This is a positive surprise.  Would your case benefit from bifurcation? Or having most witnesses just give written statements? Or having the experts arm-wrestle?  Go ahead and ask the arbitrator for it!  If you can show it would lead to an efficient resolution of the dispute, you just might get your wish.)

Tomorrow is the last listicle in the series!  I can’t decide whether to focus on five things to put in your arbitration clause, the five most read posts, or five things to love about arbitration…  Feel free to send me your vote.

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