Top 20 Mistakes Attorneys Make in Arbitration and How to Avoid Them - Chapter 9 - AAA Handbook on Arbitration Practice - Second Edition
Judith Ittig serves on the AAA's commercial arbitrator panel, the ICDR's commercial arbitrator panel, and the AAA's Construction Mega Project Panel. Mrs. Ittig, an attorney at Ittig & Ittig, P.C. based in Washington, DC, is a Fellow of the American College of Construction Lawyers, a Chartered Arbitrator/Fellow of the Chartered Institute of Arbitrators (London), and a Fellow of the College of Commercial Arbitrators. Harold Coleman, Jr., Esq., is senior vice president for mediation at the American Arbitration Association (AAA) and executive director/mediator for MEDIATION.org, a division of the AAA. Coleman also trains new AAA arbitrators and aspiring mediators in basic/advanced arbitration case management techniques and basic/advanced mediation skills. A former multi-disciplinary project manager and complex litigation attorney, Coleman has mediated and arbitrated multiplied hundreds of litigated and non-litigated disputes during a 28-year legal and ADR career. He is a Fellow and director of the College of Commercial Arbitrators (CCA) and board member of the International Mediation Institute (IMI). Coleman serves from the Association’s Los Angeles and New York offices.
Originally from:
AAA Handbook on Arbitration Practice - Second Edition
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CHAPTER 9
THE TOP 20 MISTAKES ATTORNEYS MAKE IN
ARBITRATION AND HOW TO AVOID THEM:
HOW TO AVOID COMMON MISTAKES AND
REPLACE THEM WITH TOOLS FOR
PERSUASIVE ADVOCACY
Judith B. Ittig and Harold Coleman, Jr.
I. Introduction
Arbitration has three distinct phases: the pre-hearing stage; the
evidentiary hearing and the post-hearing period, which begins at the
conclusion of the hearings until the arbitrator issues the award. As
arbitrators who have heard hundreds of commercial and construction
cases, we have come across numerous mistakes attorneys make – in
cases large and small – mistakes that can negatively affect the time the
arbitration takes, the cost of the process, and even more significant from
the clients’ point of view, the outcome.
To help attorneys recognize the mistakes they are making when
representing the parties in arbitration, we compiled a list of the ones we
see most often and suggest ways to handle the particular issue or tasks in
a manner that will be helpful to the arbitrator. These strategies could help
attorneys improve the quality of their arbitration advocacy and obtain for
their clients the benefits that arbitration was designed to produce.
II. Five Pre-Hearing Mistakes and How to Avoid Them
1. Postponing Itemization of Damages and Grounds for Recovery
Attorneys often file demands for arbitration and answering
statements that do not specify the full nature of, and dollar amounts
involved in, the clients’ claims and counterclaims. Vague arbitral
pleadings can be made because the arbitration rules of the American
Arbitration Association (AAA) do not require much specificity at this
point. General demands and answers are understandable if the claimant
wants to get the arbitration underway as soon as possible; the claims and
damages are not completely known; or the respondent is still considering
its counterclaims and offsets, which it does not want to present until the
claimant’s claims are fully fleshed out. But when attorneys choose to do
only what is minimally required by the AAA rules, even when the legal
theories and damage calculations are known, they are missing an early
opportunity to highlight their cases for the arbitrator.