blown discovery. Does the potential
arbitrator have the ability to control the
tempo of the arbitration?
arbitration upon notice of the dispute.
By doing so, it can be determined what
claims or potential defenses should be
asserted and the necessary discovery
within the confines of the controlling
arbitration clause and/or the forum rules.
Gather the supporting documents early to
avoid documentation being lost. By tak-
ing these immediate steps, the theme can
be developed with the case early and po-
tential witnesses identified. Statements,
if necessary, can be obtained in the event
a witness is moving or will otherwise not
be available in the future.
evidence will be needed to prove or to
refute the claims. Do not merely ask
for "everything" in the discovery phase
because it is not cost-effective and can
cause delay. Counsel must determine
what is necessary to prove or refute the
claims. Further, the client and counsel
should work together to tailor the neces-
sary discovery requests and maintain a
cost-effective discovery process.
leverage technology. Consider video
conferencing witnesses as an alterna-
tive to live testimony. At the outset of
the claim, the client should define what
the objective is to posture the case for
early settlement or to obtain an award
to posture the case for early settlement
due to the amount of the alleged damages
involved.
Once the ultimate objective is set,
then counsel can evaluate how best to
streamline the process without losing
the benefits of the preparation period.
The parties can agree to limit discovery
and depositions, and to the exchange of
all documents, electronically stored and
tangible, necessary to support the claims
or defenses in the matter. This duty to
disclose is similar to Rule 26 of the Fed-
eral Rules of Civil Procedure.
In preparing for the arbitration the
theme established early in the process
must be the focal point. The theme
should be simple and easily understood;
every part of the claim or defense should
circle back to that theme. The witnesses
and the documentary evidence that are
chosen should support the theme.
Finally, it is important to reaffirm the
ultimate objective: whether to win or to
put the case in a posture for settlement.
repetition in order to keep the process
streamlined. Stick to the theme and
make common sense arguments! Avoid
the courtroom formalities. The beauty
of arbitration is that one doesn't have to
be "Perry Mason" to be effective. Stay
focused on the ultimate objective at the
hearing.
tained. If so, potential experts should be
vetted to determine whom to hire. Also,
it is important to determine the best
scheduling of the hearing for the client
and the expert.
retention agreement of outside counsel.
Fee arrangements can include a flat fee
with milestone for exceptional results; an
hourly fee; or a blended rate with a bo-
nus if the defined objective is achieved.
Using a flat fee arrangement allows a cli-
ent to know the costs up-front, whereas
an hourly fee allows a client to pay for
the services as they are rendered. A
blended rate with a bonus allows a
client to pay less than the hourly rate and
to spread the payments over time as ser-
vices are rendered and gives counsel the
added incentive to achieve the defined
objective so he can earn the bonus.
Another cost consideration is to
mediate the dispute to achieve an early
resolution, which reduces the costs.
Mediation allows the client to attempt to
resolve the dispute on its terms, before
binding arbitration determines that one
side wins and one side loses. If a mutu-
ally agreeable resolution can be reached,
then the settlement is binding once an
agreement is signed.
By maximizing its built-in benefits,
arbitration can be an easier, faster
and less expensive alternative to court
litigation. Following the aforementioned
tips and techniques will increase the
efficiency, minimize expense and ensure
a quick resolution at each step of the
arbitration proceeding.