Litigators: What You Don’t Know about Commercial Arbitration Practice and Procedure Can and Will Hurt You

A CCA Blog*

By Roy L. De Barbieri, Esq, Fellow, College of Commercial Arbitrators

Litigators who approach commercial arbitration as they would a courtroom trial often find themselves at a disadvantage. Arbitration operates under different rules, and failing to adapt can weaken your case. The three areas that most litigators fail to understand before commencement is the writing of a narrative demand, the pre-hearing conference collaboration, and the importance of outlining all damages precisely. Mastering these elements is essential to succeed in arbitration.

1. Drafting an Arbitration Demand: Go Beyond Litigation Pleadings

Writing a demand and initiating your arbitration process are key areas to be understood. Too many litigators follow theories of civil litigation pleading and practice in Arbitration and miss the critical opportunity to convince and explain to the Arbitrator Panel exactly what happened; what the legal issues are; and the damage award that should be provided.

An effective arbitration demand should:

• Present a compelling, narrative-style explanation of the case.
• Clearly outline the relevant facts, legal arguments, and requested relief.
• Avoid repurposing litigation pleadings, which fail to engage the arbitrators or provide necessary context.

Arbitration demands should tell the panel what happened, why it matters legally, and what damages or relief should be awarded—setting the stage for the case.

2. Pre-Hearing Conferences: A Negotiation, Not a Standoff

The pre-hearing conference is seldom understood by inexperienced litigators. It is not the time to wait for the other party to blink.

To maximize the pre-hearing conference:

• Carefully review the arbitration clause and applicable procedural rules.
• Work proactively with opposing counsel to outline key document exchanges and procedural agreements.
• Establish a structured and realistic schedule for pre-hearing submissions and the final hearing. Arbitrators will order that you do so anyway in most cases.

Taking a leadership role in these discussions demonstrates professionalism and control over the process, helping to streamline the arbitration and strengthen your case.

3. Damage Claims: Clarity and Precision Win Cases

Lastly, the trial lawyer needs to concentrate upon a clarification and presentation of damages; not waiting for the panel to discern what you might be seeking.

Ensure your damages are effectively presented by:

• Providing a comprehensive breakdown of each damage category.
• Clearly quantifying total damages with supporting documentation.
• Presenting damages in a structured, easy-to-follow format.

A well-documented damage claim not only supports your argument but also makes it easier for arbitrators to rule in your favor.

Final Takeaway: Elevate Your Arbitration Game

If you’re new to arbitration or still relying on courtroom tactics, consider investing

in a day-long arbitration practice course, like this one, to understand better the role you must play to effectively and successfully complete an arbitration proceeding. Adapt your litigation mindset and turn arbitration into an advantage rather than a challenge.

*We are using the Aardvark moniker to denote our CCA Blog. The Aardvark will provide content from time to time about cases, developments and issues associated with the practice of Arbitration. We hope you will find the blog entries interesting and useful. We encourage you to watch for the Aardvark and its arbitration content that we hope you will enjoy.