Effective Advocacy in Mediation

In one sense, an experienced arbitrator should not need to write an article about how advocates should approach their arbitration cases. An article entitled “Effective Advocacy in Arbitration” could just as well be called “Effective Advocacy in Federal Court.” Nevertheless, a quick Google search reveals that arbitrators, arbitral bodies, and arbitration committees have published dozens of such articles. Why do arbitrators feel the need to constantly remind lawyers about “how to litigate arbitration cases,” or  “dos and don’ts of arbitration” or “effective advocacy in arbitration”?

Because we see so many lawyers botch the job.

In the not-so-distant past, I have seen lawyers whom I considered experienced litigators sitting on their side of the table with their literal shirt-tails hanging out; or, worse, treating the cross-examination of an opposing expert as though it were a deposition by asking open-ended questions.

Generally, the best advice I can give advocates in arbitration is to treat the case at every stage just as seriously and methodically as you would in federal court. We all know that, given the courts’ deference to the arbitration process, the likelihood of somehow getting an arbitrator’s or arbitration panel’s decision reversed or getting a new hearing is vanishingly close to zero. For this reason, advocates and parties should view the arbitral tribunal as the trial judge, the jury, and the appellate courts, all sitting there with you in that conference room.

At some point I anticipate writing a longer article about these issues, but for now, here are a few basics:

  • Draft your arbitration demand, statement of claim, or answering statement as though you were filing a complaint or an answer in federal court. Too often I see one or two line pleadings that do not give the tribunal even the flavor of the case.
  • Prepare for the preliminary hearing; don’t wing it. Know what the arbitrator will need to know by looking over the forum rules; you should be able to find an outline of the typical preliminary order. Speak with opposing counsel before the hearing and try to reach some preliminary agreements about hearing dates and discovery deadlines.
  • Avoid filing motions unless you are pretty certain you are entitled to the relief sought. The rules of most arbitral forums discourage motion practice. In this regard, arbitration is not much like court.
  • If you have the opportunity to file a pre-hearing brief, take advantage and brief your issues thoroughly. The pre-hearing brief is almost like another sub-rosa hearing. Tell the tribunal why you should win based on the evidence and the law.
  • Prepare for the merits hearing just as you would for a trial in federal court. Be organized and ready for every possible eventuality.
  • Make an opening statement if you are allowed to do so. Tell the panel what you expect the evidence to show.
  • Prepare and number your exhibits and have them ready for each witness. If the budget allows, present the exhibits electronically to the parties and the tribunal but create a paper folder or binder of the exhibits to give the tribunal after the close of evidence.
  • Present a professional demeanor at all times. I favor standing when presenting opening and closing statements and when questioning a witness. Use the court language of courtesy to opposing counsel and the tribunal just as though a jury were present (because it is).
  • Cross-examination should be brief, direct, and orchestrated to allow you to make your arguments. Do not forget your trial advocacy training. Ask leading, closed-end questions. Rarely should you ask an open-ended question on cross. That lawyer who treated the cross of the opposing expert like a deposition? He got eviscerated. Never forget, there is a reason that witness is an “expert” — she knows more than you do about the subject of her testimony.
  • Pay close attention to the questions the arbitrators ask; they may give you insight into the panel’s thinking. It is a good idea not only to address such questions through witness testimony but to return to them during closing argument.
  • Make a strong closing argument and prepare another strong post-hearing brief. They are the final opportunities to persuade the tribunal.

Last but not least, make a pre-hearing checklist and do not forget to use it during the hearing. The panel will probably ask the traditional ending question: “Do the parties have any other evidence to present?” That should be your cue to consult the checklist one more time. I cannot tell you how many times I have heard this anecdote from arbitrators: “We closed the hearing and we thought Party X won, but they forgot to present evidence of damages.” Or, “we awarded Party X a modest award, but they did not present any evidence of attorneys’ fees.”

Don’t be that lawyer.

CODA: I try to give you something in addition to my own observations in every newsletter. Some of you may know that I am a member of the Atlanta International Arbitration Society. At the first plenary meeting of 2022, the group gave members a free compilation of international arbitration rules. It’s one of the most thorough I’ve seen, and I am attaching it here for you.

Thanks for reading. To schedule a mediation or inquire about arbitration, call 205-208-0312.

Steve Gregory

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