What trial lawyers get wrong about arbitration.

Arbitration is intended to be faster and less costly than litigation. Where it is not, the cause is usually not the forum but that capable trial lawyers apply the courtroom playbook in a setting it does not fit.

The clause

Most of what parties later regret in arbitration is set at drafting, in a clause left to institutional default. The number of arbitrators, the seat, the scope of discovery and whether the award must be reasoned are all choices. An hour spent on the clause during the transaction is repaid many times over in the dispute.

Discovery on the litigation model

Arbitration's efficiency depends on proportional discovery. Counsel who seek the document production and deposition schedule of federal litigation retain that forum's cost while forfeiting its appellate protections.

Preserving the record

Review of an award is narrow, which leads some advocates to treat objections as unnecessary. An arbitrator who has read the file is persuaded by what is in the record. A point not made there cannot support relief.

Cross-examination

An arbitrator who has read every exhibit in advance is not the audience for a jury-style cross. The more effective examination is brief, document-anchored, and directed at the specific concessions the award will turn on.

The award

Proposed findings organized around the elements the tribunal must decide, with record citations, function as a usable draft. A closing argument does not. This is the least glamorous submission in the proceeding and often the most consequential.