Even the strongest liability claims in arbitration can be derailed by inadequate proof of damages. This article explores some possible reasons even good lawyers may “fall flat” in their damages presentation and provides tips for avoiding this pitfall.
The 2022 Commercial Arbitration Rules introduced a number of changes. Appropro of the times, it allows the arbitrator to establish the method of conducting the hearing, including video, audio, or other electronic means “when appropriate.”
I preface this post with the disclosure that in my practice I serve both as an arbitrator — AAA administered and privately administered — and as an advocate in arbitration. In talking to lawyers throughout North Carolina, I hear the same statement over and over again: I would never advise my client to opt for arbitration over litigation. Why is that? Arbitration promises less expensive, speedier resolution to sometimes complex disputes. So why are lawyers advising their clients against it? Most complain that arbitration ends up being more expensive and often fails in its promise to expedite the process. These are both dangers that I believe can be remedied by the parties and an arbitrator or panel that is willing to make pre-hearing rulings that limit the scope of discovery and time to trial. Most arbitrators that I have appeared before or served with recognize this problem and have tightened
The American Arbitration Association recently announced new streamlined rules for arbitration specifically designed for the construction industry. AAA believes that the new procedures are most appropriate in cases involving discrete issues that require limited document exchange or other discovery. The Rules definitely anticipate the parties cooperating at a level that is sometimes difficult to achieve in practice. The Rules are available on AAA’s website or downloadable on this site. Under the Supplementary Rules, AAA’s fees, arbitrator compensation, and time to hearing are all fixed based upon the value of the larger of the claim or any counterclaim. With the new rules Parties can generally calculate the cost and time from claim submission to award. AAA fees are fixed and the arbitrator’s fees are capped though there is some flexibility built in, e.g., if the arbitrator is required to resolve disputes, make a site visit, or review post-hearing briefs. In general
