Preparing Your Case for Court-Ordered Arbitration
By James Young
Court dockets are crowded, a fact that has only been worsened by the pandemic. The ongoing slew of lawsuits is one reason why many courts are using court-ordered arbitration to help settle lawsuits without the necessity of proceeding to trial. I’ve been working as an arbitrator of court-ordered cases for four years, and I have presided over hundreds of cases. Here’s a closer look at how the process works, and tips for preparing your case for a court-ordered arbitration (specifically in North Carolina).
Limiting the Time of Court-Ordered Arbitrations
Court-ordered arbitrations are a type of expedited arbitrations. While the usual arbitration process may take months to complete, expedited arbitrations are conducted within strict timeframes. Court-ordered arbitrations in North Carolina are governed by the North Carolina Rules of Supreme Court, and the hearings are limited to one hour unless the court determines at the hearing that more time is necessary.
If a longer hearing is desired, a party must file a written application for a substantial enlargement of time for a hearing with the court and the arbitrator and must serve opposing parties with the application at the earliest practicable time, and no later than the date for prehearing exchange of information under Arbitration Rule 6(d). The court will rule on these applications after consulting the arbitrator if an arbitrator has been assigned.
Type of Cases That May be Ordered to Arbitration
Rule 2 of the Arbitration Rules asserts that: “All civil actions filed in the district court division are subject to court-ordered arbitration under these rules in accordance with the authority set forth in N.C.G.S. §7A-37.1(c), except actions: (i) Which are assigned to a magistrate, provided that appeals from judgments of magistrates are subject to court-ordered arbitration under these rules except appeals from summary ejectment actions and actions in which the sole claim is an action on an account; (ii) In which class certification is sought; (iii) In which a request has been made for a preliminary injunction or a temporary restraining order including claims filed under N.C.G.S. Chapter 50C; (iv) Involving family law matters including claims filed under N.C.G.S. chapters 50, 50A, 50B, 51, 52, 52B and 52C; (v) Involving title to real estate; (vi) which are special proceedings; or (vii) In which the sole claim is an action on an account.”
As noted above, the types of cases the court orders to arbitration vary, but typically include automotive cases, personal injury cases, landlord/tenant cases, estate administration disputes, and breach of contract cases. I’ve also arbitrated cases involving mechanics’ liens, alienation of affection claims, and breach of the contract to marry. A typical case has had an answer filed and appears to be simple enough to be resolved through a court-ordered arbitration. More complex or multiparty lawsuits usually are not ordered to arbitration.
Prehearing Exchange of Information
Per the Arbitration Rules, at least 10 days before the date set for the hearing, the parties shall exchange: “a list of witnesses they expect to testify, copies of documents or exhibits they expect to offer in evidence, and a brief statement of the issues and their contentions.
“Parties may agree in writing to rely on stipulations and/or statements, sworn or unsworn, rather than a formal presentation of witnesses and documents. Each party shall bring to the hearing and provide the arbitrator with a copy of these materials. These materials shall not be filed with the court or included in the case file. Further, exchanged documents are considered authenticated. Any document exchanged may be received in the hearing as evidence without further authentication; however, the party against whom it is offered may subpoena and examine as an adverse witness anyone who is the author, custodian, or a witness through whom the document might otherwise have been introduced. Documents not so exchanged may not be received if doing so would, in the arbitrator’s opinion, constitute unfair, prejudicial surprise.”
Becoming a Court-Ordered Arbitrator
The process to become an arbitrator may vary in different states and jurisdictions, but in North Carolina, Rule 3 outlines the qualifications for arbitrators.
Specifically, “the chief district court judge shall receive and approve applications for persons to be appointed as arbitrators. Arbitrators so approved shall serve at the pleasure of the appointing court.
A person seeking to be added to the list of eligible arbitrators shall:
- Be a member in good standing of the North Carolina State Bar
- Have been licensed to practice law for five years
- Shall have been admitted in North Carolina for at least the last two years of the five-year period. Admission outside North Carolina may be considered for the balance of the five-year period, so long as the arbitrator was admitted as a duly licensed member of the bar of a state(s) or a territory(ies) of the United States or the District of Columbia
- Shall complete the arbitrator training course prescribed by the Administrative Office of the Courts or their training designee
- Shall observe at least one arbitration conducted by an arbitrator already on the list of approved arbitrators as provided for herein
- Have a valid email address.”
I am certified to serve as a Civil District Court Arbitrator in Guilford, Randolph, Cabarrus, Rowan, and Mecklenburg Counties.
Preparing for a Court-Ordered Arbitration
First and foremost, I cannot stress enough the importance of preparing for the arbitration hearing. You have a limited amount of time to present your case — typically my court-ordered arbitrations last an hour. That means you need be organized and to get straight to the point at the hearing.
Prepare your client about what to expect before the arbitration. [See below.] If you have your client testify, stick to essential questions to prove your case. Caution your client against rambling or straying for the issues at hand.
In addition, you should have your exhibits labeled and organized so that you can present your case quickly and efficiently. In the counties where I arbitrate, arbitrations are often scheduled on the hour.
Consider talking to opposing counsel before the hearing. There are often stipulations that the two of you can agree on before the hearing that will free up time to get to the essential dispute, as discussed earlier in this article. If possible, get these issues aired out before the hearing so you don’t waste time.
The Day of The Arbitration
The court-ordered arbitration is similar to a regular trial and includes brief opening remarks. The traditional rules of evidence and procedure are relaxed. However, I use them as a guide towards the full and fair development of the facts.
While there is a time limit for counsel, you should recognize that clients want to feel like they had their “day in court.” That means you as the lawyer need to prepare them ahead of time and make sure that they’re prepared to speak concisely. Your client’s ability to be heard depends on you. Speak with your clients ahead of time and make sure that they thoroughly understand the process. You also want to keep your cross-examinations sharp and straight to the point.
Finally, make sure that you ask specifically for what you want when you conclude your case. Make it easy for the arbitrator to understand the relief you are seeking.
Finally, per the Arbitration Rules, the arbitrator shall declare the hearing concluded when all the evidence is in and any arguments the arbitrator permits have been completed. In exceptional cases, the arbitrator has discretion to receive post-hearing briefs, but not evidence, if submitted within three days after the hearing has been concluded.
If the case is not terminated by dismissal or consent judgment and no party files a demand for trial de novo within 30 days after the award is served, the clerk or the court shall enter judgment on the award, which shall have the same effect as a consent judgment in the action.
If your case is assigned to court-ordered arbitration, take the time to prepare your client and your case for the hearing. Planning and making the most of your limited time before the arbitrator can help ensure a better result for your client.
About James Young
James Young is a fully bilingual (English-Spanish) mediator and arbitrator who also maintains an active law practice. He is a North Carolina Certified Superior Court Mediator and has experience mediating a range of cases including, but not limited to, guardianships and Medicaid planning, special needs estate planning, breach of contract, defamation, personal injury, workers compensation, and estate matters. James also has extensive arbitration experience in the areas of personal injury, landlord/tenant issues, and contractual disputes.