A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators

Company

LOGO

A Guide To Effective

Arbitration Advocacy

Get the Most out of Arbitration

for Your Clients

are proud to co-sponsor

Upchurch Watson White & Max

Mediation Group

and

Meet our presenters

Richard B. Lord Shareholder

[email protected]

A. Michelle Jernigan Shareholder

[email protected]

George A. Sprinkel Mediation Counsel

[email protected]


Mediation Group

www.uww-adr.com

© Upchurch Watson White & Max 2

mailto:[email protected]?subject=Effective Arbitration Advocacy Webinar









http://www.uww-adr.com/



The genesis and history

of arbitration

• King Solomon

• Philip the Second (337 BC)

• England (1224)

• Rome (the Middle Ages)

• Native Americans


U.S. history

• The colonies

• The Federal Arbitration Act (1925)

• The National Labor Relations Act (1935)

• The War Labor Board (around 1945)

• The Florida Arbitration Code

(1957)


Types of arbitration cases

• Consumer

• Commercial

• Construction

• Med Mal

• Nursing home

• Securities

• Med-Arb in class actions

• By agreement, court order …

• Binding and non-binding


Advantages over litigation (if the

arbitration is done correctly)

• Costs

• Time

• Privacy

• Finality

• Lack of Judicial precedent being set

• A more satisfactory process

• Expert decision makers


A few words about ‘finality’ There are 5 statutory grounds for vacating an award under the FAC: 1. When procured by corruption, fraud or other undue

means

2. When there is evidence of partiality, corruption or misconduct of an arbitrator (prejudice)

3. Where arbitrators exceeded their powers

4. When there is refusal to postpone a hearing on sufficient cause shown (prejudice) or a refusal to hear material evidence (prejudice)

5. When there is no agreement or provision for arbitration.

Grounds for vacating under the FAA is almost identical without No. 5 as a basis.


Arbitration should NOT be allowed to become

as costly and cumbersome as litigation

• Thus the importance of managing the process.

The arbitrator(s) must be good managers, and

the advocates must work together to ensure a

cost effective process for their respective clients.

• If your client wants to enjoy the benefits of

arbitration, you should seek a streamlined

approach and avoid unnecessary discovery,

motions and delays.


If you have a choice, do you go

with one or three arbitrators?


The panel

• Adds costs

• Adds diversity of views

• Section 682.05

• The agreement may state if the panel’s

decision is to be by majority or unanimous


Going with just one arbitrator


Selecting your arbitrator(s)

• What do you look for?


Fairness, management skills, analytical skills,

subject matter experience, decisiveness,….


Traits of the effective arbitration

advocate

• There is a direct correlation between

preparation and results.

• Organization helps you prepare and

present.


• Being disciplined helps

you remain focused

and efficient

• Being concise helps you

make your points


advocate



advocate

• Working cooperatively helps your client

realize the cost and time savings

arbitration offers.


Don’t over-litigate

• Client satisfaction with arbitration is

influenced by not only the result, but the

process – too much time, delays, too

much litigation, and too much expense

drive satisfaction down for most clients. If

you want to arbitrate more, don’t be

cavalier about your client’s pocketbook or

time.


You should narrow the facts

• Meet and prepare a “Statement of

Stipulated Facts”

• Why?

Avoids unnecessary testimony and

hearing time; let’s the arbitrators focus on

what they have to discern and decide; and

can aid in the examination of well founded

motions.


You should narrow the issues

• Meet and prepare a “Statement of Issues

Not in Dispute and Issues to Be Decided

by the Arbitrator(s)”. Consider issue

refinement where needed.


Potential stipulations –

by no means an exhaustive list

• Can the two remaining arbitrators select a

third when one withdraws, or can the two who

remain decide the case?

• Can witnesses appear telephonically or

through video-conferencing?

• Is there a limit to the number of witnesses?

• Is there a limit to the number of depositions,

and how long they should last?


Potential stipulations –

by no means an exhaustive list

• Can all testimony be submitted by transcript or video?

• Will their be one notebook of documentary evidence submitted about which there is no objection?

Be thinking about what will help the arbitrators to do their job and what will keep costs down


Paying the arbitrators

• By contract, per agreement or order?

• Who pays whom, by when and

what amount?

• Be mindful of deposits being

required.

• Review the engagement letter and calendar

all key dates.

Be sure to resolve this issue “up front”. If you

don’t, your arbitration may be rescheduled or

canceled.


Scheduling the final hearing

• Do you have enough days set aside?

• Do you have too many days set aside?

• Are you scheduled for non-consecutive

days?

• Is it far enough out so all necessary

discovery, meaningful motions, and other

preparation can be complete?

• Are all clients and witnesses available?


What arbitration law applies – state FAC

or Federal FAA?

FAA applies to transactions involving:

• interstate commerce

• maritime transactions

FAA supersedes FAC

Most arbitration provisions will indicate

which law applies.


What arbitration law applies –

state FAC or Federal FAA?

• The parties can stipulate that their

dispute is to be governed by either

the FAA or the FAC.


Do any rules of evidence apply?

What is the “rule of thumb”?

• Depends on which procedural rules are

applicable to the process (as an example,

CPR has a rule on evidence: “The arbitrator

shall determine the admissibility, relevance,

and materiality of the evidence offered, and

conformity to legal rules of evidence will not

apply”).

• Depends on the arbitrator – discretion.


Do procedural rules apply?

• Review your arbitration clause to see what

applies and, if you have a choice, know

which set of rules would be best for you.


Your submission(s)

• Your arbitrator(s) should not have to

search for a “needle in a haystack”, and

redundant or duplicative materials add

time and thus charges.

• Coordinate with opposing counsel and be

prepared to discuss submissions at a

status conference.


The ‘Chair’ decides?

Or does it?

• Should any issues be decided by the Chair

of the panel on his or her own?

Discovery disputes may be suitable for the

Chair to decide.

• Objections to the admissibility of evidence?

• Other matters?


The Decision or Award

• Your arbitrator may ask for a stipulated

form of decision.

• Do you or does your client want or need

findings of fact and conclusions of law?

• Limited basis for review / appeal / vacating

• Is an attorney’s fee award being sought?


If a fee award is being sought

The arbitration award must specify the theory under which

the claimant prevailed, or otherwise clearly indicate

whether the claimant has prevailed on a theory that would

permit the trial court to award fees.

Moser v Barron Chase Securities, Inc.,

783 So.2d 231 (Fla. 2001)

Kessler v Chatfield Dean & Co.,

794 So.2d 577 (Fla. 2001)


If you mediate the case pending

arbitration

• Who is your mediator going to be?

• Confidentiality ramifications.

• Med-Arb


Impact of the Arbitration Clause

A process that enhances efficiency can be

detailed in the arbitration clause.

Don’t leave it to chance with boilerplate

language.


“A Guide to

Effective

Arbitration

Advocacy”

Florida Bar

Course #

1303318N

1.5 Hrs.

General

CLE Credits

1.0 Civil Trial Daytona Beach Maitland/Orlando Jacksonville Miami Birmingham

Richard B. Lord Shareholder

[email protected]

A .Michelle Jernigan Shareholder

[email protected]

George A. Sprinkel Mediation Counsel

[email protected]


Mediation Group

uww-adr.com

Please email [email protected] with questions about course number, Webinar recording, etc. 34

mailto:[email protected]



We Invite You to Visit the


website

www.uww-adr.com

for a schedule of upcoming

seminars / webinars and to listen

to our complimentary

recorded webinars!





Business

A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators