Over the past year, Miles Mediation & Arbitration has revamped and expanded its Arbitration Division to make arbitrations more convenient and cost-effective for the parties involved. Miles now has nearly four dozen experienced arbitrators with different areas of specialization on its panel; we spoke with several of them about their arbitration experience, current arbitration trends, and their advice to help attorneys prepare for arbitrations.

A Growing Push for Arbitration

Leah Albert has been arbitrating for more than 34 years, handling cases in the employment arena (discrimination/harassment/wrongful discharge, etc.), commercial/contractual disputes, and commercial cases including technology and technology services, licensing and franchising, and anything involving the investment arena. “Emphasis on alternative dispute resolution [ADR] depends on the part of the country,” says Albert, who’s based in St. Louis. “The Midwest is amenable to mediation more than arbitration, but I see more of an emphasis on pushing arbitration on the East Coast and West Coast.”

Some types of cases, like auto claims, are more likely to be arbitrated than others. “Ninety-five percent of my arbitrations have been North Carolina uninsured/underinsured (UM/UIM) motorist cases,” says Charlotte-based Andy Lax, who has been arbitrating for 20 years. “Those involve injuries where the claimant has a claim against an uninsured defendant or where the defendant’s insurance does not have enough coverage to satisfy the claim and the claimant’s own UM/UIM coverage comes into play. It happens a lot in auto cases.” In these cases, there is a three-person arbitrator panel to hear the dispute.

“I think the push [for courts to assign cases to arbitration] to any type of ADR will continue because it helps judges keep their dockets clear,” says Rusty Grant, an Atlanta-based arbitrator who handles mostly personal injury cases. “I think attorneys are becoming more used to the idea of arbitration as the form of ADR for specific cases.”

“I think the trend towards prompt and affordable arbitration will continue because the court system is slow and expensive,” agrees David Nutter, who has 17 years of arbitration experience, handling business disputes, employment cases, construction cases, and personal injury cases.

Note that parties arbitrate primarily “because they have signed a written agreement to do so as a part of the contract between them,” says Susan Forsling, who has been arbitrating for a decade, handling cases ranging from medical negligence to sophisticated business disputes. “In other words, as part of an agreement to perform services, the dispute resolution mechanism is designated as arbitration.”

“Sometimes judges have to order the arbitration because the parties don’t agree that the contract requires it,” she adds. “That’s why, for example, you see so many nursing home cases in arbitration. Of course, the parties can always agree to arbitrate in the absence of a written agreement to do so. This is the exception. However, judges do not have the general authority to assign cases for arbitration in the absence of a contract or statutory scheme requiring it.”

Benefits of Arbitration

In addition to relieving some of the pressure on crowded court dockets, arbitration costs significantly less money than preparing for a trial. “I personally believe that non-binding arbitration with a competent arbitrator is an efficient and cost-effective method of dispute resolution,” says Tom DeBari, a Florida arbitrator who handles auto accident and premises liability cases.

Another benefit is “that it doesn’t have to involve the theater that trial practice does. Attorneys in trial must cater their arguments to jurors who really don’t want to be there,” says Rusty. “In an arbitration, attorneys can focus on the facts and arguments of the case rather than trying to impress 12 jurors.”

Arbitration also lets the parties resolve discovery issues more quickly, with fewer formalities. “For example, I received an email today regarding a discovery dispute in a commercial contract case,” says Susan. “I’ve instructed the other side to respond by tomorrow in an email and I’ll have the matter decided by Wednesday. This same process in court would require briefing and would take months to get an order from a judge.”

Preparing for Arbitration  

So, how should attorneys prepare for an arbitration? “Treat it like you are preparing for a trial,” says Andy Rowlett, a Nashville arbitrator with experience in areas including personal injury, business/commercial/contract, insurance coverage, and subrogation and recovery. “Visual aids can be critically helpful.”

“Preparation for arbitration is similar to trial,” agrees Tampa-based Drew Lewis, who arbitrates contractual matters, long-term care cases, and medical malpractice cases. “Familiarity with legal issues and with evidentiary issues is essential.” He also suggests that lawyers present a focused, concise presentation.

Attorneys should “focus on what they need to prove under the specific legal theories at issue — and stay focused without getting into the weeds,” says Savannah-based Roy Paul, who has served as an arbitrator or special master in commercial, property and fiduciary disputes and personal injury cases.

“Consult with opposing counsel and schedule the calling of witnesses before the hearing so that you know witnesses will be available on that date,” says Leah. “And be specific in your statement of claim so that the arbitrator can determine whether there is a potential conflict of interest.”

Andy Lax offers these three tips for preparing for arbitration: “(1) be clear and compelling in your presentation; (2) be succinct, focusing on the strength of your case; and (3) if you are the claimant, be sure that you present evidence for all necessary elements of your case,” he says.

The Future of Arbitration

Miles is well-positioned to continue to grow its arbitration business, not only because of the quality and experience of its arbitrators, but also because of its client-focused processes and reasonable fees. Miles’ Arbitration Division also offers a cost calculator so clients know what they will spend when they arbitrate at Miles.

“For years AAA and JAMS were the leading organizations offering arbitration services,” says Susan. “They were/are both very pricey. Miles has set up its own rules and case management practices as an alternative. We have captured, I believe, a market that does not want to use AAA or JAMS. Our administrative fees are less and our processes less cumbersome, in my opinion.”

The demand for arbitration is likely to continue, adds Roy. “I think the courts and parties are looking for ways to get to resolution as rapidly as possible,” he says. “Particularly in jurisdictions where there is some backlog, arbitration is an attractive alternative and will remain so.”