Advocacy In Arbitration: 5 Tips From An Arbitrator On How To Present Your Case.

• Jurisdiction: United States,Federal
• Law Firm: Dickinson Wright PLLC
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Author: Ms Kristen E. Hudson
• Published date: 02 February 2023

I used to think that judges had it so easy. That all they had to do was read the briefs, listen to the arguments, and make a decision. Only after I started serving as an arbitrator did I understand how hard it is to be the one responsible for making a decision. Not only that, I realized advocates did not always ask or answer the questions that would elicit the most critical information to making that decision.

Serving as an arbitrator has made me a better advocate - from understanding what matters in a case to better using the tools at my disposal to highlight those critical substantive facts and credibility determinations. Here are the top five lessons I've learned so far. ¹

1)Know the rules of the road. The first step always involves understanding the forum, the laws governing it, and how to procedurally maneuver from the starting point to the result your client wants. In almost every arbitration I'm involved in, at least one of the advocates has either a). not read the rules applicable to the arbitration, or b). does not understand the substantive law governing the arbitration (usually the Federal Arbitration Act and U.S. Supreme Court and other federal decisions interpreting the FAA), thus, often making decisions that cost their client money.

Arbitration is a private dispute resolution system created by a contract - an arbitration clause in a pre-dispute agreement or a submission agreement if created post-dispute. Thus, the parties' agreement is the beginning of any inquiry regarding jurisdiction, including the arbitral tribunal's jurisdiction to hear the dispute and the scope of the disputes subject to arbitration. The goal of the FAA was to put arbitration clauses on equal footing with other contracts to reverse historical judicial hostility to arbitration.² In doing so, the U.S. Supreme Court made clear that although arbitration clauses are subject to contract defenses like fraud and mistake, to avoid jurisdiction of the arbitral tribunal, those defenses must go the decision to arbitrate itself rather than to the agreement as a whole.² This is commonly known as the separability doctrine: the arbitration clause's validity is considered separate from the container agreement's validity. As to the enforceability of the arbitration provision, contract defenses must go to the making of the arbitration clause itself. Although this precedent has been the law of the land for more than half a century and was expanded by the U.S. Supreme Court, advocates...