Preparation is Key: Avoid These Six Common Arbitration Mistakes

Wed, Apr 5th, 2023 | by Miles Mediation and Arbitration | Article | Social Share

 by Leona Cummings

As an attorney, your duties may vary depending on the nature of the clients you represent, the types of cases you take on, and the types of procedures you’re involved in. For example, the way you comport yourself during a deposition may not align with the way you act during a motion call or at trial. The same holds true for appearing at an arbitration. While arbitration and litigation share some similarities, there are also issues unique to arbitration that attorneys should be aware of.

As an experienced arbitrator of labor and employment cases, I often see attorneys making mistakes when they arbitrate. Here are some of the most common arbitration mistakes, and how to avoid them.

Mistake: Underestimating Witnesses

When preparing for an arbitration, one of the big mistakes is underestimating witnesses or downplaying their importance. In labor and employment arbitrations, lower-level employees are often asked to testify. I’ve seen attorneys underestimate the potential contribution of a witness based on the person’s educational level or job title, but they wouldn’t do this with a C-level employee. The attorney may think that the person’s testimony isn’t important or credible, but he or she may have evidence that is critical to the case and may be a pivotal witness.

Avoid this mistake: Keep in mind that someone’s job title or education does not reflect the value of his/her testimony or potential contribution.

Mistake: Failing to Prepare Clients and Witnesses

While an arbitration isn’t a trial, you still must prepare for the arbitration and prepare witnesses beforehand. Yet I have arbitrated cases at which attorneys are meeting their clients for the first time at the arbitration! That’s a mistake. While they may ask for time to talk with their client or witness before the hearing begins, this should be a quick review session, not a first meeting.

Avoid this mistake: Meet with your client before the arbitration. If your client will testify, have your list of questions ready in advance, and talk through them with your client. (Do the same with other witnesses.) Let the person know what types of questions to expect from opposing counsel, and what to do/not to do, such as not answering questions they’re not asked, and not speculating or guessing. Let your client and witnesses know that while the proceeding isn’t as formal as a trial, it’s still a professional hearing and they should act accordingly.

Mistake: Failing to Prepare Other Evidence

Another common mistake is failing to have documents and exhibits in good order, properly identified, and the appropriate number of copies made (one copy for opposing counsel, one copy for the witness and one copy for the arbitrator). Being disorganized, shuffling through papers, and stopping to make copies leaves a bad impression on the arbitrator and can affect how well you present your case.

Avoid this mistake: Before the arbitration, confirm that you have all relevant documents and exhibits ready for use, with the correct number of copies. Some arbitrators ask attorneys to provide a pre-hearing synopsis of the case; consider drafting one even if the arbitrator doesn’t request it. It will help you prepare for the hearing. And if you’re asked to submit post-hearing briefs, those are your final words on the matter, so make them persuasive.

Mistake: Failing to do Background Research on the Arbitrator

You’re more likely to be familiar with judges you appear before than the arbitrator chosen for your case. Going in cold — with no knowledge of the arbitrator or how he or she has ruled in the past — is another common mistake.

Avoid this mistake: Do background research on the arbitrator who will hear your case. Get as much information as you can about the arbitrator to give a sense of how he or she has ruled in the past and what to expect at the hearing. You can reach out to other attorneys who have appeared before the arbitrator to learn more about the person.

Mistake: Acting Too Informally or Too Aggressively at the Arbitration 

This mistake involves your demeanor at the arbitration itself. An arbitration is not a trial, and sometimes lawyers approach it too casually. While the hearing may not be as formal, it is still a professional setting, and your behavior and attitude should reflect that. Another mistake I see attorneys make is grandstanding or behaving aggressively toward the other side or toward witnesses. This is inappropriate, and easy to avoid.

Avoid these mistakes: An arbitration is someone’s opportunity to have his or her case heard, so err on the side of being professional rather than too informal. Avoid arguing with opposing counsel, witnesses, and the arbitrator. Your attitude and behavior can help, or hurt, your case.

Mistake: Choosing Arbitration Without a Compelling Reason

Finally, before you worry about how to arbitrate, or how to get ready for an arbitration, consider whether it’s appropriate. Be thoughtful about choosing arbitration. Don’t take a case to arbitration just for the general principle or because your client wants to make a point. It’s a waste of everyone’s time, including the arbitrator’s, which makes it yet one more mistake to avoid.

Avoid this mistake: Be selective about the cases you take to arbitration. It’s okay to let a client know that you’re not going to proceed with an arbitration because the person’s case is weak or untenable. There needs to be some kind of injury, evidence of the injury, and a specific remedy you’re seeking. At the arbitration, be sure to ask for the remedy you’re seeking.

About Leona Cummings

Leona Cummings has over 30 years of experience in dispute resolution, mediation, contract negotiations, interpretation, and implementation from the private and public sectors to the DRB profession. Her experience includes cases involving labor and employment law; pharmaceuticals; railroads; healthcare; public schools; major airlines; trucking; and the U.S. Army Corps of Engineers. She currently serves as an independent arbitrator for the New York City Transit Authority-Transport Workers Union, the American Arbitration Association and the Better Business Bureau.