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Preparing for Arbitration

While parties are frequently represented by attorneys in arbitration, this is not required. Parties do represent themselves. (With complex cases, retaining an attorney is certainly recommended, though.)

Generally there is an initial telephone conference call where the arbitrator will set hearing dates, deadlines leading up to the hearing and orders regarding the exchange of documents and witness lists.

Attorneys are familiar with how to prepare cases and generally just need to be reminded that the strict court rules regarding evidence do not apply in an arbitration. Because the arbitrator is entitled to give whatever weight he/she deems fit to evidence that is admitted, the tendency is admit all evidence unless it wildly irrelevant or privileged. (Privilege covers things such as attorney-client communications, the privilege not to testify against one's spouse, and prior settlement discussions.)

As might be expected, the key to a making a good arbitration presentation is organization. Most parties write in advance an outline or notes of the documents they want to introduce and the questions they want to ask their own witnesses and the other side's witnesses.

Generally each party will be required to bring four sets of pre-marked documents, one for the arbitrator, one for the other side, one for the current witness and one for that party. Often these are placed in three-ring binders with numbered or lettered tabs.

The arbitrator in many cases may want the parties to submit prehearing briefs (which can be in letter format) setting out their arguments. The purpose is to get the arbitrator up to speed on the arguments before the arbitration hearing begins.

At the hearing there may or may not be opening arguments; generally if there are prehearing briefs there are no opening arguments. The claimant begins with the claimant's first witness, asking questions and introducing documents until finished. The other side is then able to question (cross-examine) the witness. The arbitrator may ask questions as well. The two sides go back and forth until all questions have been asked of the witness. The claimant then proceeds to the claimant's next witness. This continues until all the claimant's witnesses are done, then the respondent starts with the respondent's witnesses. Once the respondent is done, the claimant may have rebuttal witnesses.

At the end of the arbitration there may be closing arguments or post-hearing briefs, depending on the complexity of the matter. The arbitrator seldom will issue a decision as the end, as he/she generally wants time to review the documents and testimony before making a decision.