With just about every court in the country facing a backlog of months to years, alternative dispute resolution is becoming an attractive way for parties to “litigate” their disputes in a more timely and private fashion. While most people have not seen the inside of a courtroom, even fewer have been involved in arbitration proceedings. This article sheds some light on what a typical business dispute arbitration process can look like. If you think that you may be required to arbitrate a contractual dispute, it is important to seek the advice of a lawyer experienced in alternative dispute resolution.
An “Informal” Process
Arbitration is often described as an “informal process” designed to allow parties to resolve their disputes in a relatively quick and private manner. This is a misnomer. Arbitration proceedings are not to be taken lightly. In many cases, the decision of the arbiter is binding, so it is best to take the process seriously.
Every arbitration will have at least two parties in opposition. These parties may be referred to as plaintiffs and defendants, although they may also be referred to as claimants and respondents. Like plaintiffs, the claimants are the individuals or groups that bring a claim. Respondents, like defendants, are the individuals or groups that respond to the claim. In most cases, each party will be represented by one or more attorneys, although this is not a requirement for individuals and some businesses.
Instead of a judge, arbitrations are heard by one or more neutral persons called arbitrators or neutrals. Often, the arbitrator is a retired judge. In the best circumstances, the arbitrator is experienced in the type of legal matter that is being heard. Both parties are involved in choosing who will be the arbitrator.
Once the parties have chosen the arbitrator, one party will initiate the arbitration process by filing a claim. This is akin to a complaint in the normal court process. The respondent will file a response. From this point, the parties engage in the discovery process. This involves scheduling depositions and exchanging demands for documents and other evidence. The arbitrator may place deadlines on this phase of the process.
During the time, both parties will determine who will serve as witnesses and whether expert testimony is required. Based on the evidence, the parties will each build their case. In many cases, the arbitrator will ask for both parties to submit briefs summarizing the factual and legal issues in the case. The parties will also be asked to submit evidence to the judge supporting their claims and defenses prior to the arbitration date. The parties may also file motions to exclude evidence, called motions in limine. The arbitrator will generally rule on these motions before testimony is heard.
Depending on the complexity of the case, arbitrations can take days, weeks or months to complete. During this time each party will have the opportunity to present witnesses and evidence to the arbitrator. Most attorneys will generally insist upon having a court reporter present to record all of the testimony. This allows them to help build their case and perfect their closing brief at the end of the arbitration.
Throughout the arbitration attorneys for each side may issue objections to certain testimony or evidence being submitted and the arbitrator will rule on those objections just like a judge would in any normal court proceeding. When both sides have presented all of their witnesses the arbitrator will ask each side to provide closing briefs and/or schedule closing arguments.
Once all briefs and arguments have been made, the arbitrator will issue a ruling. If the terms of the agreement require the arbitration to be binding then both sides must adhere to that ruling.
If you are facing a dispute that may require arbitration and would like to speak with an attorney, contact Willcox, Buyck & Williams, P.A. today for a consultation.