How does an arbitration proceed?

Arbitrations proceed by the parties all appearing before an arbitrator, that third-party impartial decision maker, usually at the arbitrator’s offices. Before that hearing starts, there probably would have been a preliminary conference, by telephone or in more complex cases by a meeting in person with the arbitrator. At the arbitration, witnesses are introduced, just as in court, and they are examined and cross-examined but usually an arbitrator is more involved in follow-up questioning and making sure that he or she understands the testimony than a judge in a court. It is rare for jurors to be permitted to ask questions and judges are less inclined than arbitrators to ask questions of witnesses. The hearing can proceed witness by witness over the course of whatever time is necessary to complete it, various papers can be filed by the parties, including arbitrator memoranda at the outset, motions, and closing papers.

The arbitrator will then make a decision after having heard argument from all sides. The benefits of an arbitration over a courtroom trial are that it can proceed more quickly, can be initiated far more quickly and be resolved far more quickly than any lawsuits can be resolved and the hearings are private, not open to the public. The expense is substantially less than the costs of a trial which can be more protracted, multiplying the hours of lawyer billings and usually arbitrations involve substantially less discovery and are less expensive in that sense and are less invasive of the parties’ time and records. Arbitration is frequently used to resolve construction and other contract cases; it can and is often used in serious personal injury or even death cases by agreement of the parties.

Much of what is done in a construction or contract arbitration is agreed upon before the contract or work giving rise to an arbitration commences and arbitration clauses in the contractual arrangements and the parties can, in many respects, arrange the decision-making process by agreeing before a dispute occurs to certain discovery or stipulating as to witnesses and procedures to be followed. It is often said that the arbitrator is the judge and the jury in a case. There is generally no appeal from the arbitrator’s findings.