Introduction: Arbitration as a Strategic Legal Avenue
Arbitration is a widely used method of alternative dispute resolution (ADR) that offers parties a more private, flexible, and often faster alternative to litigation. For clients unfamiliar with the arbitration process, the experience can be daunting. It’s the responsibility of the legal counsel to provide clarity, confidence, and strategy.
Knowing how to prepare a client for arbitration is crucial to achieving a favorable outcome. Preparation involves more than legal arguments—it includes educating the client, managing expectations, organizing evidence, and fostering composure throughout the proceedings.
This article offers a step-by-step guide to ensuring clients are thoroughly prepared for arbitration, both procedurally and psychologically.
1. Educate the Client on What Arbitration Involves
Clients need to fully understand how arbitration differs from courtroom litigation. Provide a clear, concise explanation of the process, tailored to their level of legal experience.
Key Elements to Explain:
- Arbitration Agreement: Often part of a contract—review terms carefully.
- Neutral Arbitrator(s): Selected by both parties or appointed by a tribunal.
- Confidentiality: Proceedings are typically private and off the public record.
- Less Formal Procedures: While structured, arbitration is not bound by strict rules of evidence.
- Finality of Decision: Awards are usually binding and not easily appealed.
Explain both the advantages (speed, privacy, flexibility) and disadvantages (limited appeal, cost of arbitrators) to set realistic expectations.
2. Review the Arbitration Agreement Thoroughly
Start your preparation by analyzing the arbitration clause in the governing contract. These provisions dictate the rules, venue, language, applicable law, and selection of arbitrators.
Checklist for Reviewing Arbitration Clauses:
- Is the arbitration binding or non-binding?
- Is there a pre-arbitration mediation requirement?
- Which rules apply (e.g., ICC, AAA, LCIA, UNCITRAL)?
- Where is the seat (legal location) of arbitration?
- Are there limits on discovery or types of damages?
Use this as a foundation to construct your legal and procedural strategy.
3. Clarify the Client’s Objectives and Risk Tolerance
Before preparing arguments, discuss the client’s goals and thresholds. Arbitration often requires strategic compromise.
Essential Questions to Ask:
- What is the client’s ideal outcome?
- What outcomes are acceptable or unacceptable?
- Is the client willing to settle during proceedings if favorable terms are offered?
- How important is reputation, confidentiality, or speed?
Understanding the client’s business or personal priorities allows you to shape the approach accordingly—whether aggressive, conciliatory, or strictly by-the-book.
4. Prepare a Clear, Cohesive Case Theory
Like in court, arbitration decisions hinge on the strength of your case theory—a compelling narrative supported by facts and law.
Steps to Build the Case:
- Develop a timeline of key events
- Identify relevant documents and evidence
- Highlight witnesses that can support claims or defenses
- Research arbitration precedents or past awards under similar facts
Keep the theory simple, structured, and logical. Arbitrators prefer clarity over complexity.
5. Organize and Share Documentary Evidence Early
Discovery in arbitration is often more limited than in litigation, making early organization of documentary evidence critical.
Document Preparation Tips:
- Collect all relevant contracts, emails, invoices, and reports
- Create indexed, labeled binders or digital folders
- Share documents with opposing counsel according to disclosure rules
- Prepare a documentary chronology to accompany oral arguments
Failure to disclose early can result in exclusion of key evidence or procedural penalties, depending on the arbitral rules applied.
6. Prepare Witnesses for Direct and Cross-Examination
Witnesses often play a crucial role in arbitration, especially where credibility and interpretation are in dispute. Train your client and other witnesses to perform effectively under questioning.
Witness Preparation Essentials:
- Conduct mock Q&A sessions with both direct and cross questions
- Emphasize truthfulness, clarity, and brevity
- Teach them to stay calm and avoid speculation or overconfidence
- Clarify their role—fact witness or expert witness—and boundaries
A confident, honest, and composed witness can often tip the balance in the eyes of the arbitrator.
7. Coach the Client on Arbitration Etiquette and Demeanor
How a client behaves during arbitration matters. Arbitrators, though impartial, are still human—and impressions count.
Professional Behavior Guidelines:
- Dress in business-appropriate attire
- Be respectful to opposing counsel and the tribunal
- Avoid emotional outbursts or interruptions
- Maintain neutral body language
Remind your client that their behavior could influence the arbitrator’s perception of credibility and trustworthiness.
8. Prepare for Settlement Possibilities
Many arbitrations are resolved before final award, especially as parties gain clearer insight into case strengths and weaknesses.
Be Ready to:
- Discuss settlement ranges privately with your client
- Participate in pre-hearing or mid-hearing settlement talks
- Use an independent mediator if necessary
- Consider creative solutions outside traditional remedies
A well-timed and favorable settlement may serve your client’s interests better than pursuing a full award.
9. Rehearse the Hearing Day Schedule
Before the hearing, walk your client through the entire process to reduce anxiety and prevent surprises.
Include:
- Start times and location (in-person or virtual)
- Who speaks when—lawyers, witnesses, arbitrators
- When breaks will be taken
- When the client may be called upon to speak or answer questions
A detailed rehearsal eliminates uncertainty and helps the client approach the hearing with confidence.
10. Debrief After the Hearing and Set Expectations
Once the hearing concludes, provide a comprehensive debrief to review what went well, what could be improved, and what to expect next.
Explain:
- When and how the award will be issued
- The possibility of post-hearing submissions
- What happens if the award is favorable or unfavorable
- Enforcement steps if applicable
Keeping your client informed after the hearing maintains trust and prepares them for any further action.
Conclusion: Preparation Is the Key to Arbitration Success
Winning an arbitration isn’t just about legal arguments—it’s about strategic preparation, client confidence, and narrative control. By educating your client, organizing evidence meticulously, and managing expectations with honesty and clarity, you give them the tools to approach arbitration from a position of strength.
An informed, composed client becomes a true partner in the process, helping you build a case that resonates with arbitrators and stands up to scrutiny.
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