Party Autonomy – Something Litigators Should Love

Party Autonomy – Something Litigators Should Love
August 26, 2016 Gary

You know those days when you have to deal with all those arcane pleading, motion practice and discovery rules, wrestle with opposing counsel on every point, and kowtow to the Judge no matter how annoying he or she might be?

Oh, that’s the life of a litigator.

So you’d think, litigators would relish the relaxed nature of arbitration. But all too often, I come across litigators who don’t.  They are so caught up in court procedures and formalities, they don’t take advantage of one of the greatest benefits of arbitration. These are the lawyers who think arbitration is just another day in court. The reality is arbitration can be a more satisfying experience for counsel – if they appreciate it for what it is.

How so?  First things first, understand you’re not in court. Arbitration is a part of a business arrangement. It’s contractual, private, and less formal than a court proceeding. Relax a little and enjoy the change of pace.

Second, understand your client chose arbitration for a reason – and it’s not always because your client didn’t know the difference between arbitration and litigation. Sophisticated clients choose arbitration for a variety of reasons: to save costs, to expedite decision making, to have expert decision-makers, for privacy or, in international disputes, to provide for a fair, neutral forum. In all these situations, the parties have agreed to arbitration and not a court case.  So why give them one? Arbitration provides an opportunity to reduce costs and focus less on procedural rules and more on the merits of the dispute.

Third, understand arbitration provides an opportunity for party autonomy.  Arbitration offers flexibility because it doesn’t come with thousands of procedural and evidentiary rules. Arbitration is a matter of contract – and the parties set the rules. The parties, through their counsel, have the opportunity to define a process that suits their needs. Timing, briefing, discovery, motion practice, hearing procedures -it’s all within the parties’ control so long as they agree and what is proposed is reasonable and efficient.

A good Arbitrator will allow counsel to agree on procedures and schedules that work for counsel and their clients. The Arbitrator fills the void only where counsel don’t agree.

Amazingly, this is too much freedom for some litigators who have grown accustomed to being told what to do. They want to blindly adhere to court procedures and rules and to be handed a schedule. With time, most realize that having the ability to develop procedures and set schedules that work for the convenience of counsel and clients is a much better way to proceed.

Fourth, appreciate that arbitration is an opportunity for some collegiality. You have the opportunity to coordinate with opposing counsel to develop a process that works efficiently for counsel and clients.  Yes, your client still expects you to win the case but keep in mind you’re in a private setting with other legal professionals. You’re not in front of a jury so you can put aside the theatrics. And for that matter, remember, Arbitrators are not impressed with overly-zealous advocacy. So, instead enjoy the change of pace. Civility and collaboration may lead to a settlement or other benefits for your client. It certainly can make your day go easier. Isn’t that refreshing?

Finally, understand arbitrators are not judges – and most don’t want to be.  They typically became arbitrators because they believe arbitration offers a better process than the court system. Arbitrators address dispute resolution as business process; they typically have specialized practice strengths and a deep interest in the subject matter of their cases. They identify themselves more as lawyers than judges. They are not officials assigned a caseload. They do not answer to the appellate courts. Rather, they are focused on serving the parties and the counsel appearing before them and providing practical, efficient resolution of disputes.

Most arbitrators appreciate the opportunity to have a collegial relationship with counsel on a case.  And they welcome the opportunity to work with counsel to offer counsel and their clients a resolution process that works for them.

So, as a litigator, you might be comfortable with the court process. But your role as arbitration counsel is different. Understand it, appreciate it and perhaps even try to enjoy it.