A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators

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A Guide To Effective
Arbitration Advocacy
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Meet our presenters
Richard B. Lord
Shareholder
rlord@uww-adr.com
A. Michelle Jernigan
Shareholder
mjernigan@uww-adr.com
George A. Sprinkel
Mediation Counsel
gsprinkel@uww-adr.com
Mediation Group
www.uww-adr.com
© Upchurch Watson White & Max 2

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
rlord@uww-adr.com
A .Michelle Jernigan
Shareholder
mjernigan@uww-adr.com
George A. Sprinkel
Mediation Counsel
gsprinkel@uww-adr.com
Mediation Group
uww-adr.com
Please email cklasne@uww-adr.com with questions about course number, Webinar recording, etc. 34

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!

A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators

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A Guide to Effective Arbitration Advocacy from Three Florida Arbitrators