FEATURE
Top Seven Terrible Mistakes Lawyers Make in Arbitrations By DAVID K. TAYLOR
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here is a great argument that lawyer advocacy in an arbitration is more essential than at trial in court. Agreeing to arbitrate disputes is a serious decision for any general counsel. There are many pros and cons, but when a dispute is arbitrated, finality is the rule rather than the exception. Great arbitration lawyering is therefore essential. The following are the top seven mistakes I have seen while representing parties in arbitrations, as well as while serving as an arbitrator.
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1
Mangling the Arbitration Clause. Arbitration is a matter of contract. There are detailed articles on drafting arbitration clauses, but far too often drafters fail to consider the basics. Which disputes will be subject to arbitration, “any and all” disputes or only limited issues? Pre-hearing discovery is limited, so what information will you need in the event of a dispute over this contract? What rules will apply? What discovery will be allowed? Who will choose the arbitrator and how will she/he be chosen? Will there
be one arbitrator or a panel of three, and should qualifications be listed? Will you need to formally include third parties in the event of a dispute, and if so, allow for such consolidation in the clause?
2
Not Performing Due Diligence on the Arbitrator. After an arbitration demand is filed with the alternative dispute resolution (ADR) agency, all counsel are sent a list of potential arbitrators with bios. The selection process is like selecting a jury. Cross off unacceptable arbitrators; list the rest BACK TO CONTENTS
