Arbitration Tips for Counsel
One of the most thoughtful and helpful projects undertaken for the arbitration community is the “Protocols for Expeditious, Cost Effective Commercial Arbitration,” produced by the College of Commercial Arbitrators with many of our world’s top arbitrators participating in the drafting and editing.
One key section that I want to highlight is focused on counsel’s preparation. It is true that in some respects we all know that counsel does the best it can with the hand that it is dealt. At the same time you want to be at your peak representing your client. Preparing for arbitration is not to be seen as the same as litigation. Counsel who approaches them as the same will potentially be injuring your client’s chances of success. It is important to have someone on your arbitration team who has an in depth familiarity with the arbitral process, its nuances, and how you can use this dynamic towards your and your client’s benefit. A couple of recommendations from the College have to do with the following – some obvious, others maybe not so much:
- Counsel should only participate when they have the time, the substantive knowledge, and the arbitral experience to represent their clients. Beyond substantive knowledge many in the field point to having the expertise to support an expeditious and cost effective arbitration.
- Counsel needs to be familiar with the rules that are governing the arbitration so they can focus on streamlining the matter. If you have read some of my earlier blogs you know that I am not advocating doing away with discovery, or moving towards documentary exchange as is customary in most European practice areas. What I am advocating is that counsel know that arguing for more depositions than necessary or setting up a hearing that gets bogged down is not going to go well with the decision makers.
- Know the law, know the arbitration procedures, and know your arbitration panel in terms of what are they looking for to assist in their decision. Give them what they want, not what you necessarily think they want. This does not mean you should compromise at all in putting on a complete and thoroughly persuasive case for your client.
One other point that is worth covering here is a recommendation that arbitration counsel, inside counsel, and the client have an agreement about the case, its scope, its estimated cost and time.
It is important for counsel, as in any attorney-client relationship, to carefully advise the client about the process, what is entailed and what they could expect.
Way too many disputes arise out of misunderstandings between counsel and client, only to have counsel to try to reverse something when a client learns about it too far down the road.
Best if you can have a separate engagement around the arbitration that outlines the expectations of counsel and client.
In later blogs I will address selecting the arbitrators(s), cooperation and agreement with opposing counsel, and a review of limiting discovery.