Arbitration Article No. 7


Be familiar with the terms of the arbitration clause in the operative agreement. The location, scope, costs and possible success of the arbitration will be impacted by the existence or non-existence of language in the arbitration clause mandating where and before whom the arbitration shall be conducted;
how the arbitrator shall be selected and the procedural rules that shall govern the process, including the scope of discovery and a possible requirement that the arbitrator apply the law at issue. (The question whether parties can contractually require that an arbitrator apply the law and, if he/she fails to do so, can challenge that failure on a motion to confirm the award is now before the California Supreme Court. See my discussion in Arbitration Insight no. 6 of Cable Connection, Inc. v. DIRECTV, Inc. (2006) 143 Cal.App.4th 207, which held “that parties cannot contractually expand the jurisdiction of the trial courts to permit review of arbitration awards for legal error.” The Supreme Court subsequently granted review of that decision.)

Select an appropriate arbitrator. Conduct careful due diligence into the backgrounds of the potential arbitrators. Do they have a legal background or experience in the issues in question? How have they ruled in comparable arbitrations?

Approach the arbitration as though it were a court trial. Do not assume that the informal arbitration setting justifies a more casual approach to the presentation of your case. Other than that excessive and hyper technical evidentiary objections should not be made and that courtroom dramatics should be toned down, proceed as you would in a court trial. File appropriate motions for summary judgment or adjudication. Submit an opening brief. Provide the arbitrator with an indexed evidence notebook. Bring motions in limine when they will educate the arbitrator and lead potentially to the exclusion of irrelevant or prejudicial evidence. Use charts, diagrams, blown-up photographs and videos when they effectively explain and dramatize the evidence. In other words, do not be lulled into a sense of complacency because the arbitration shall take place around a table in an office suite; the success of your case will still depend upon the extent of your preparation.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright, Michael D. Marcus, March 2007

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