1 Participatory MCLE Credits

Arbitration has grown in leaps and bounds over the last few decades. Court crowding, the difficulty of even getting before a judge on minor motions, judges’ predilection to toss cases via summary disposition as a way of pruning dockets, partisan judges – all these factors have pushed many run-of-the-mill commercial cases into arbitration. A generation ago, many cases arbitrated today would have been tried in court. This change has brought an influx of commercial litigators into the arbitration world. Many do not change their expectations or tactics when they arbitrate. It also has brought clients whose expectations remain stuck on past court experience. 

One result of these changes is that one often hears that arbitration has become more court-like. Supposedly it cannot any longer produce the speed, low-cost, and efficiency that once was its hallmark.

We believe this bad rap on arbitration is untrue. Moreover, often the lawyers, or lawyers and their clients, are at fault. Lawyers whose arbitrations end up looking about as long and costly as an ordinary case often fail to use the powers arbitration gives them to get to hearing much more quickly. They spend little time thinking about how to use arbitration rules to insist on the best, most efficient proceeding. The panelists will discuss how best to use the extensive powers arbitration gives parties to control their own proceeding. Our tips should help parties and their counsel craft arbitrations that yield arbitration’s fabled virtues. 

We will discuss six major areas of arbitration. First, arbitrator selection. Selecting the judge or judges is the most important single decision in every arbitration. The process can bog down and generate extreme frustration. Yet it repays investments of time and money.  Protracted selection tempts many parties to pick their arbitrator too quickly. But care and deliberation in this process are rewarded. We will also talk about the natural suspicion between the parties and how that can derail the selection process, and about the kind of arbitrator who usually is most effective in deliberations.

Second, the schedule. How much time for discovery, how early the hearing, and how long should it be? It is surprising how many lawyers omit simple steps that would give them much more control over the length of discovery and the trial. We will discuss why letting the arbitrators know what kind of hearing date and schedule you want before the initial prehearing conference and why you deserve that schedule is essential to effective representation in arbitration.   And why it is a classic mistake to give up on reaching agreement with the other side without making every effort to do so.

Third, discovery. Arbitration rules encourage, support, and almost command shortened discovery. This is more true in international than domestic arbitration, but it is true in both. The panel will discuss the kind of arguments a party seeking speed, lower cost, and a quick final resolution can use to reduce the amount of discovery. We also will discuss, conversely, how a lawyer stuck with one of the unusual cases in arbitration that truly needs broad discovery almost like that in courts can best push a panel to treat this case differently than an “ordinary” arbitration. 

Fourth, prehearing and post-hearing briefs. Don’t make the mistake of thinking that because arbitration is informal, you don’t have to brief the law carefully. Or the facts. Or remedies. Or the burden of proof. Or your defenses. The panel will discuss what should, and should not, be in these critical briefs. 

Fifth, the hearing itself. There are many reasons hearings should run more smoothly than trials, particularly jury trials. The freedom from rules of evidence is only one of them. But what does it mean to be free of rules of evidence, what kind of evidentiary arguments still should be raised, and what must lawyers not forget to prove in spite of arbitration’s informality? We will cover all these topics. 

Finally, sixth and last, the award and appeal. A reasoned award is the default form under most rules, but not under the AAA’s main Commercial Arbitration Rules. Nor in small AAA construction cases or before FINRA. And while courts are required to defer more to arbitrators than to lower courts, and a finality is sought by most parties in arbitration, the canard that “You cannot ever appeal an arbitration award” is not true. One often hears that “reasons make awards vulnerable.” That, too, is untrue. We will explain why. 

Both panelists have studied the frequency of the different grounds that can be used to seek vacatur of awards, their relative success rates, and whether reasons truly make awards vulnerable. Larry Mills was a lead author in three studies of vacatur stretching back to 2005; John McArthur conducted a study of vacatur efforts over eight years using cases reported in Westlaw keynotes. It is the basis for two chapters in his recently published THE REASONED ARBITRATION AWARD IN THE UNITED STATES (Juris Publications October 2022). They will clear up the myths that surround the entire topic of appeals. 

Want to learn how to really exploit the special powers arbitration rules give parties?  Want to learn how to get to hearing promptly and at the least expense? Register to attend this presentation.

Speakers: Lawrence R. Mills, John McArthur, and Serena K. Lee

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Larry Mills is an experienced arbitrator and mediator who serves on the JAMS panel of neutrals in San Francisco and Seattle.  Larry is a Fellow of the College of Commercial Arbitrators and a Distinguished Fellow of the International Academy of Mediators. He is a former Chair of the American Bar Association Section of Dispute Resolution and the Washington State Bar Association ADR Section.  
 
Larry is a graduate of Princeton University and the University of Michigan Law School.  He is the founder of the Seattle law firm Mills Meyers Swartling, where his law practice focused on business law and commercial litigation.   Since the mid-1980s, Larry has arbitrated and mediated hundreds of cases privately, for the American Arbitration Association, and, beginning in 2012, for JAMS.  He also serves as a FINRA arbitrator and mediator.  Larry has written many articles on dispute resolution processes and he is a frequent speaker at arbitration and mediation CLE programs.   
 
Larry’s dispute resolution practice includes business and commercial, employment, real estate, intellectual property, professional liability, securities, insurance, and financial services matters.  His detailed biographical information is at www.jamsadr.com/mills and he may be contacted at lmills@jamsadr.com.

John Burritt McArthur has been a trial lawyer since 1983. He was a partner in Houston’s Susman Godfrey LLP and later San Francisco’s Hosie McArthur LLP. McArthur has tried cases in state and federal courts around the country, and is licensed by the States of Texas, California, and Alaska. He holds an “av” rating from Martindale-Hubbell and was one of the earliest Fellows in Litigation Counsel of America. He has been honored by a number of other trial-lawyer associations.

McArthur has served as an arbitrator for thirty years. He has focused primarily on serving as an arbitrator since 2008. He has arbitrated over 125 arbitrations to award and is a listed arbitrator with the AAA, CPR, and Fed-Arb, the Roster of International Arbitrators, and international arbitration centers. McArthur is on many specialized listings, including for antitrust, banking, employment, investments, oil-and-gas, and securities. He is a Fellow of the CCA and CIARB, and a Member of the National Academy of Distinguished Neutrals. He has written and spoken on many legal matters, including oil-and-gas law, judicial management, and arbitration. His most recent publication is THE REASONED ARBITRATION AWARD IN THE UNITED STATES: ITS PROMISE, PROBLEMS, PREPARATION, AND PRESERVATION (Juris Publications; October 2022).