22 Dec Understanding Arbitrators
Arbitrations have been on the rise for several years, but the pandemic has advertised and increased this dispute resolution into overdrive. Especially since its speed and relative easy transition to a virtual setting. Already popular pre-pandemic, the increased necessity of “work from home” arbitrations will only make this more popular.
Preparing for them is easier than preparing for a jury trial and can be more reliable with more analytical decision makers than juries and judges.
Arbitrators make decisions like judges do.
One way of understanding arbitrator decision-making is the most direct route – looking at their decisions and explanations for those decisions. Judicial decision-making has been the subject of more empirical research to date than arbitral decision-making. Because many arbitrators are retired judges,, judicial decisions can help to provide a useful reference point.
Like judges, arbitrators rely on established legal standards and precedents, despite arbitrators not being bound by precedent. Both decision-makers also followed similar decision-making paths, in that they similarly weigh certain types of evidence and render comparable decisions based on those evaluations.
Arbitration and courtroom procedures are also quite similar with similar procedural rules, roles of counsel, discovery efforts and briefings.
Arbitrators respond to arguments like jurors do.
Arbitrators are often intuitive thinkers, making decisions based on what “feels” right rather than what is factually right.
Present evidence in a compelling way that includes the what, where, how and why. This is just as important in helping arbitrators make sense of the evidence as it is for jurors and judges. A complete and realistic story connects the dots in the way counsel believes they should be connected, and can strengthen your case.
Sometimes counsel tend to provide too much information in arbitration hearings – too many witnesses, too many exhibits, complex or compound arguments and overly long submissions. Experienced lawyers know not to overload jurors and even some judges, but they often overestimate how much information arbitrators can process in one brief or hearing day. Arbitrators should not be overloaded with information.
Our pre-existing beliefs help us quickly evaluate new information. If new information matches what we already believe, we accept it as true. If it does not match, we reject it as false. Crafting a compelling and persuasive narrative early in the proceeding will have a long-lasting impact on how arbitrators will see a case.
- Get to know the arbitrators. Learn as much as possible about who they are and how they make decisions to better understand those filters and biases that will affect how they evaluate the evidence.
- What is it about their backgrounds that may have a nexus with the issues in their case and how could that affect how they view the evidence? Such research can their legal practice, social posts, external interests and affiliations.
- Utilize mock arbitrations. Mock arbitrations provide invaluable insight into how the arbitrators will likely see your case. Potential jurors and a mock arbitrator can really maximize the potential perspectives gathered in the exercise.
- Prepare as though you are trying your case to an overeducated jury. Always educate before you advocate and go slowly, especially the first time through the material.
- Developing a compelling narrative cannot be overstated. Begin identifying, testing and refining your themes into a narrative.
- Incorporate that narrative into briefs, witness statements and live testimony, opening statements and closing arguments.
- Information is better if received multiple times, in multiple ways. Combine briefs, oral presentations and visuals to educate the arbitrators, reinforce important evidence and illustrate key themes. Make sure to prepare and use visuals at all stages of the process.
- Simplify the language you use in the hearing. Steer fact and expert witnesses away from too much jargon. Utilize checklists, flow charts and decision trees to guide decision-making.
- Organize your briefs and arguments into sections with headers and let the arbitrators know where you’re going next.
- Remember that the arbitrators are learning something new in every arbitration. Help them every chance you get, and they will appreciate it.