To Transcribe or Not to Transcribe: Considering Whether You Need an Arbitration Transcript

Tue, Dec 5th, 2023 | by Miles Mediation and Arbitration | Article | Social Share

By Jennifer Grippa

Arbitration is a commonly used alternative dispute resolution process where parties involved in a legal dispute contract for a private and more expedient approach to resolve their issues. When arbitrating a case, there are a number of decisions that must be considered, including how you will present your evidence; the order in which you present witnesses; and whether to include expert testimony, and if so, when your expert should testify — for example, at the beginning of your case or toward the end.

One critical aspect of arbitration which is sometimes overlooked is the decision to create a transcript of the proceedings. While arbitration transcripts can help provide clarity and an accurate record of the hearing, choosing to create a transcript may also have advantages and disadvantages. As a frequent arbitrator of construction law cases, I’ll explore the pros and cons of creating a transcript of an arbitration in this piece.

The Pros of Making an Arbitration Transcript

• Documentation and accuracy. One of the primary benefits of creating a transcript is the ability to document the entire arbitration hearing accurately. This can be invaluable for the parties and the arbitrators – and for any post-award proceedings. A transcript ensures that there is a clear and indisputable record of what transpired during the proceedings. While attorneys may not think about it during the pre-hearing phase, this can be particularly helpful if questions arise later about the scope of the arbitration, the evidence presented, or the content of the award.
• Review and analysis. Real-time transcripts can be a valuable resource for both parties and their legal counsel. They provide an opportunity to review and analyze witness testimonies, evidence, and arguments made during the arbitration. A real-time transcript can aid in formulating strategies during the hearing.
• Enhanced objectivity. Transcripts offer an unbiased account of the proceedings. In situations where there are multiple arbitrators, each with their perspectives and recollections of the testimony, having a transcript minimizes the risk of misunderstandings or misinterpretations. It provides a common reference point for all involved parties, fostering a more objective assessment of the case.
• Effective cross-examination and legal arguments. Having a real-time transcript allows parties to cross-examine witnesses and make legal arguments more effectively. It provides a verbatim account of what was said, making it easier to identify inconsistencies or contradictions in witness testimonies. Attorneys can also use the transcript to pinpoint specific points for clarification or challenge the accuracy of statements.
• Clarity and understanding. Transcripts can help ensure that all parties have a clear understanding of what transpired during the hearing. This can be especially helpful when complex legal or technical issues are being discussed. It can also be used to clarify any misunderstandings that may arise during the arbitration process.
• Fostering accountability. The presence of a transcript encourages all parties involved to maintain professionalism and accuracy during the arbitration process. Knowing that their words are being documented verbatim can deter witnesses or attorneys from making inaccurate or misleading statements.

The Cons of Making an Arbitration Transcript

There are several potential drawbacks of making an arbitration transcript, including:

• One of the most significant drawbacks of creating a transcript is the associated cost. Transcription services can be expensive, particularly for lengthy arbitration hearings. Parties will need to allocate resources to cover these expenses.
• Potential delay. Transcribing an entire arbitration hearing can be time-consuming. It may result in delays in receiving the final award, which can be frustrating for parties looking for a swift resolution to their dispute.
• Limited privacy. Parties often opt for arbitration for privacy reasons. Creating a transcript means that the details of the arbitration hearing could become public, potentially compromising the privacy of the parties and sensitive information.
• Potential for misinterpretation. Transcripts are not always perfect representations of spoken words. There is a risk of misinterpretation or misunderstanding, especially when dealing with technical terms or accents. This can lead to disputes over the accuracy of the transcript itself.

Parties should carefully weigh the pros and cons of an arbitration transcript before deciding to create one. Arbitration proceedings can be intricate, with different legal arguments, numerous witnesses providing testimony, and complex evidence being presented.

Creating a transcript of arbitration proceedings, especially in cases of lengthy hearings or when multiple arbitrators are involved, is a prudent practice that can significantly enhance the fairness, accuracy, and overall effectiveness of the arbitration process. As such, it should be a carefully considered aspect of the arbitration process.

*Originally published in the Daily Report and reprinted with permission.

About Jennifer Grippa

Jennifer Grippa has 22 years of courtroom, trial, and conflict resolution experience. She is a former partner and construction practice group leader of a large 150+ member law firm and is double- barred in both Florida and Georgia. As a Florida Supreme Court Certified Circuit Court Mediator, Registered Neutral in the State of Georgia, and a Super Lawyer in the area of ADR, she resolves complex litigation.