Alternative Dispute Resolution
Dec. 17, 2002
Winning Is for Losers: Here's Another Way to Play
Endless articles have been written about how to get to arbitration and what to do after you arrive to present a persuasive and winning case. Strangely, very few articles are devoted to the best ways to lose an arbitration. A clear guide, written from an insider's perspective, is long overdue.
Robert S. Mann
Neutral, ADR Services, Inc.
Email: rmann@adrservices.com
Robert mediates and arbitrates business, real estate and construction disputes.
By Robert S. Mann
Endless articles have been written about how to get to arbitration and what to do after you arrive to present a persuasive and winning case. Strangely, very few articles are devoted to the best ways to lose an arbitration. A clear guide, written from an insider's perspective, is long overdue.
RULE NO. 1: Whatever you do, don't read the rules.
Arbitration is supposed to be informal. So why bother reading the rules of the alternative dispute provider, right? They can't be all that important.
Avoid any consideration of the rules pertaining to the selection of the arbitrator, so that you end up with someone with little or no experience in the subject matter of the dispute.
Also, definitely avoid knowing the rule that says you can expand or contract the way in which the arbitrator will handle your case and whether the arbitrator is required to write a "reasoned report." After all, who would want to know how the arbitrator decided the case - don't they all just split the baby anyway?
RULE NO. 2: While you're at it, don't read the contract, either.
So what if you have contractual arbitration and the contract defines the scope of the arbitration. You'll get to the contract sooner or later in the arbitration. Why read it beforehand? Besides, if you let the arbitrator know the limits of his or her authority during the arbitration, and not before, it will be fresh in the arbitrator's mind.
Anyway, explaining all of these details, such as whether attorney fees are recoverable, whether the arbitrator has to follow the rule of law or rules of evidence and whether any discovery is available is a lot of trouble. The arbitrator does this all the time; let him or her figure it out.
RULE NO. 3: Arbitrators are all the same, so why bother to check them out?
Everybody knows that all arbitrators are the same. Why waste your time in reading those lengthy arbitrator resumes and calling around to other lawyers in the community to find out whether that arbitrator is smart, fair and conscientious? Aren't all arbitrators fair, experienced, reasonable, patient and careful? They must be, or they wouldn't be arbitrators.
RULE NO. 4: Be an unreasonable jerk during pre-arbitration hearings to show you're tough.
Those pre-arbitration hearings aren't just for scheduling and resolving potential procedural issues to streamline the case. They are also a great opportunity to show that you're a tough-as-nails, take-no-prisoners litigator, a stance sure to impress any arbitrator.
Start by refusing to stipulate to facts that everyone agrees on. Follow up by arguing about the numbering of exhibits and the timing of the document exchange. Fight for an exchange on the opening day of arbitration so you can warm up for the actual arbitration by spending hours handing documents to your opposing counsel instead of putting on your case. After all, dispute resolution is a two-word term, and the first is dispute.
RULE NO 5: Briefs--who needs briefs?
Why make extra work for yourself by preparing an arbitration brief to educate the arbitrator about the facts and law? Isn't it more fun and interesting for everyone to hear about the case for the first time during the arbitration? Hey, arbitrators are quick studies and they welcome a challenge.
RULE NO. 6: Reschedule the hearing a million times.
Nothing endears you to an arbitrator more than rescheduling a hearing countless times. Plus this tactic keeps the case at the forefront of the arbitrator's attention, and keeps you in the spotlight as the arbitrator struggles to manage his or her caseload to accommodate your last-minute schedule changes. You don't want to be just another well-managed case, do you?
RULE NO. 7: Show up late, don't bring your witness and leave on your cellphone.
Who's on time for anything anymore, anyway? Fashionably late is a better plan, and it makes you the most important person in the room when you do walk in last. (And it's all about you, anyway, isn't it?)
Want bonus points? Don't bother to confirm that your clients and witnesses know where and when the arbitration is held. That way you can get interrupted with frantic cell phone calls and create an atmosphere of excited expectation about the hearing schedule.
A few laughs are always guaranteed by witnesses who show up without documents and present their parking ticket to the arbitrator for validation.
RULE NO. 8: Present a spontaneous and totally unrehearsed case.
Everybody knows that arbitrators are just people, and they like to be entertained. Don't fall into the trap of putting on a tightly scripted, well-planned case that focuses on the issues - it's the surest way to put the arbitrator into a deep sleep.
Instead, craft a presentation filled with amusing gaffes, time-consuming scrambles for documents, wandering lines of questioning (a great tactic to keep the arbitrator attentive while he or she figures out where in the world the case is going). And remember above all - repetition, repetition, repetition. There's just no better way to make your point than to repeat it, repeat it and repeat it. And repeat it.
RULE NO. 9: Make faces; the Three Stooges, Jerry Lewis and Jim Carrey made millions using this simple technique.
Who says that you have to sit there with a straight face while some witness on the opposing side lies his tuchas off?
Pulling faces is an excellent non-verbal communication technique that effectively demonstrates to the arbitrator your skepticism about the witness' credibility. Practice your entire repertoire - frowns, sighs, groans and shakes of the head - in advance.
Be creative; it will enhance your case and let the arbitrator know that you're a true professional worthy of respect. If this doesn't work, sulk and whine a lot.
RULE NO. 10: Never complain, never explain.
It worked for Henry Ford II, why not you? You need not take the time and trouble to elucidate complex factual and legal issues. Don't arbitrators get the big bucks to figure it out for themselves?
And don't get thrown by that old arbitrator's trick of asking you or your witness questions. Anyone knows that arbitrators don't really want to know the facts, they only are asking questions to keep both sides guessing about what they are thinking. Your best choice is to pretend that you didn't hear the question, or respond by asking when it's time to take a break so that you can hit the Starbucks downstairs.
And closing briefs? Forget about it. Once everyone has testified, it's time to move on and wait for the decision. After all, you've done an outstanding job; a closing brief is just overkill.
Time to sit back and wait for the award. You deserve it.
Robert S. Mann, a member of the American Arbitration Association, arbitrates and mediates construction, real estate and business disputes. He is the principal of The Mann Law Firm in Century City.
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