Make sure your “hot docs” stand out in your exhibit notebook if you’re prepared for an arbitration. Some attorneys “fumble and flail” in arbitration, according to Peter Khalil, director of Northwest Mediation LLC in Vancouver, Washington. Don’t get mired down in procedural squabbles, adds Khalil because arbitration is supposed to be informal. The largest error practitioners make, according to seasoned arbitrators, is equating the arbitration room with the courtroom.
- Find out who your arbitrators are
Even if you had a hand in choosing one or more of them, it’s still a good idea to do some research on their backgrounds, experience, and knowledge of the subject.
- Play music for the audience
Arbitrations are occasionally held in cramped spaces or rooms with unusual layouts. If at all feasible, investigate the site ahead of time to ensure that you are comfortable on game day. Make the arbitrators’ jobs as simple as possible. You don’t want them struggling with your huge notepad or searching through a mess of displays if they’re seated at a small table. Consider digitising and aesthetically displaying your critical papers if your logistics allow it.
- Don’t be a schmoozer
The relaxed atmosphere may tempt you to strike up a conversation with the arbitrators. Don’t. The only time you should speak with us is when you’re discussing the matter in public and on the record. We must always be unbiased, which includes seeming impartial. A successful appeal of our award might be based on a charge of prejudice based on an innocuous remark. And there’s nothing we despise more than getting smacked on the bench. We can’t laugh with you at the news or cry with you about the loss of a local sports team because we must maintain an objective approach. Respect our limits and allow us to be the anti-social jerks we need to be for the benefit of your clients and ours.
- Tell a fantastic story
Your story should be succinct, human, and, most importantly, engaging. Attempt to condense the theme into a single statement. According to attorney Craig Roswell, your opening statement is an opportunity to convey the tale from your point of view. Your conclusion ties everything together in a logical, memorable, and convincing manner.
- Don’t keep your most valuable possessions in your briefcase
“In arbitration, a party can often introduce information that would be inadmissible in litigation,” Roswell observes. “Don’t assume that just because something is inadmissible, you shouldn’t supply it.” Present the evidence to the arbitrator, who will determine if it is persuasive enough to be accepted. You don’t want to find out later that you didn’t bring the smoking gun’ because you were scared it would be inadmissible, only to find out later that the arbitrator’s ruling would have been different if you had.”
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