Cost-Effective

Strategies for
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Arbitration
KATHLEEN M. J. HARMON

ABSTRACT: Arbitration is evolving from a swift, cost-effective alternative dispute

resolution mechanism to a slow, laborious process akin to litigation in terms of procedure
and costs without the safeguards of litigation. By use of several unique techniques to
reduce the time and costs, the original virtues of arbitration can be restored, while
maintaining the integrity of the process and its inherent procedural fairness. This article
details several suggestions on how, with some forethought and planning, cost and time
reductions can be enacted without sacrificing the main tenet of the arbitration process,
namely, a fair, swift, and cost-effective dispute resolution process.

A
‘‘ few strong instincts and a few costsofthearbitrationprocess.Itexamineshowtoorganizethe
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plainrules,’’Wordsworth(1888). documentation to allow for the most efficient and cost-

effective use of attorneys, expert witnesses, and staff time; sug-
gests cost-effective steps prior to the actual arbitration hearing
which may eliminate unnecessary testimony; demonstrates
the efficient use of telephone conferences; and essentially
Arbitration is a contractually-mandated binding form of makes suggestions as to how the entire arbitration process can
dispute resolution. The evolution of arbitration from an infor- bemoretime-andcost-effective.
mal,fair,andswiftprocessintoamoreelaborateandstructured This article is divided into three main sections. First is the
one has replaced its virtues with the vices of litigation: greater arbitrationprocessitself;thesecondincludeswhatstepstotake
expense, more procedures, and longer duration (Lyons 1985). priortothehearing;andthethirdentailswhatstrategiescanbe
Before actual arbitration, the parties as well as their legal teams usedatthehearingitselftoreducecostsandtime.
willincurthecostoflearningbothsidesofthecasethroughthe ARBITRATION PROCESS
process of discovery. Discovery and preparing for the actual A notice of arbitration is given to you or developed by you.
arbitration itself is document-intensive and can involve the What now? Presuming that there is no dispute as to
review and analysis of thousands, or even tens of thousands of whether or not arbitration, rather than litigation, is the
documents. Moreover, in generally all large arbitration cases, agreed-to venue for resolving the dispute, what are the first
and currently often smaller (less than $1 million) ones, the par- steps that need to be taken to ensure that to the extent
ties generally use expert witnesses and consulting experts to possible, costs, fees, and time are controllable?
analyze the documents and schedules, ferret out the facts in
dispute, and develop conclusions, while paying particular Arbitration Fees
attention to items that can affect the resulting damages. The
fees for consulting experts to simply organize the documenta- Unlike a judge and jury trial, which carries minimal fees,
tion for use by the legal team can run into the hundreds of arbitration expenses can be considerable. Payments for ad-
thousands of dollars. This article suggests steps to reduce the ministration of the arbitration and panel member fees can

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 add up very quickly. Depending on the contractual agree- ments will take less time than reviewing an unanticipated 50

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ment, consider having a single arbitrator rather than a panel. recentlylocatedbecause‘‘everything’’wasnotuncovered.
Fees can be saved and schedule issues may be avoided by
having a single arbitrator. Going this route, particularly in SCHEDULING
small cases (those under $1 million), may be advisable. It Unlike a trial, which begins and generally runs continuously
will save you fees and perhaps some other costs, but a word from start to finish, arbitration is often plagued by delays
of warning—if you have decided to use a single arbitrator, almost exclusively caused by scheduling conflicts between
chose wisely, and remember that each arbitrator brings his/ the parties, expert witnesses, and the arbitrators (Rubin et al.
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her own particular biases and life experiences to the proceed- 1992). The best schedule is consecutive days, but unless the
ing. While choosing the ‘‘right’’ arbitrator(s) is beyond the arbitration hearings are estimated to take only a few days,
scope of this article, choosing a panel of arbitrators or a single consecutive scheduling rarely occurs. The scheduling and re-
arbitrator wisely is an important part of having a positive scheduling of attorneys, witnesses, and others, can be a
experience with arbitration. nightmare in terms of costs as well as be counterproductive.
Nevertheless, there is a downside in having a single arbi- If you believe an arbitration hearing will take three days,
trator, namely, there may be a greater risk for an unsupported schedule five. The unexpected occurs with more regularity
award due to the lack of moderating influences from other than we all like to acknowledge, and since scheduling at least
arbitrators. Some believe that having a single arbitrator puts two attorneys, two principals, three arbitrators, and other
too much power, without much hope of an appeal, into a assorted witnesses can be a daunting task, make sure every-
single arbitrator’s hands. one has days reserved as additional hearing days in case the
‘‘unexpected’’ actually occurs.
Establish and Monitor the Arbitration Budget There is a downside to scheduling more days than you
believe are necessary in that some administrative organiza-
tions, such as the American Arbitration Association (AAA)
Get an estimate of the legal fees for each of the tasks includ-
require prepayment for arbitrator time for all days scheduled.
ing research, preparation for arbitration, and hearing time.
This can be expensive. Moreover, if it is a private arbitration,
The tasks involved may include:
some arbitrators want payment for all days scheduled since
• Gathering and organizing client documents;
these days would not be available for other work. There is no
• Inspection of opposition documents;
simple resolution to this dilemma. If on one hand you do not
• Interviewing client personnel;
schedule enough days in advance of the hearings, you run the
• Depositions;
risk of having delays to the start of or during the arbitration
• Motions (sometimes requested by the parties and granted
hearing. On the other hand, if you do schedule ‘‘reserve’’
by the panel);
days, you may have to put up more money for fees than
• Pre-hearing presentations;
originally anticipated. Also, there is a real fear that the arbi-
• Post-hearing briefs;
tration hearing will expand beyond what was originally an-
• Preparation of exhibits and PowerPoint presentations for
ticipated because those days have been scheduled. The old
the hearing itself;
adage that ‘‘work expands to the time available’’ is not with-
• Use of expert witnesses;
out merit. I can only tell you what I suggest when serving on
• Conferences with the entire legal team.
a panel—extra days should be reserved by all parties without
Request an itemized billing that outlines the charges, by per-
additional fees paid to myself or my fellow arbitrators until
son, task, hours, etc., and compare the bills against the esti-
those ‘‘additional’’ days are actually determined to be needed.
mates. While this may not prevent billings from exceeding
Most of the time my fellow arbitrators will agree to schedule
the budget because there are always unexpected situations,
reserve days without additional fees being immediately col-
documents, etc., it will give both you and your legal team an
lected. After the first day of the hearing, if we (the panel and
understanding of the parameters of the work to be accom-
the parties) determine those reserve days are needed, then fees
plished, who is expected to perform that work, and the esti-
for these days are paid immediately. If not, I consider those
mated costs thereof. However, as with all estimates, they are
previously reserved days as ‘‘catch up’’ time to get other work
just ‘‘best guesses’’ based on the information supplied, docu-
done.
mentation provided, and experience of those submitting
them. Factors that can lead to exceeding the estimated budget
include information that is incorrect or lacking in some way, Travel
inadequate or incomplete documentation, and a misrepre-
sented amount of documentation. More often than not, bud- Avoid unnecessary travel. This seems like an obvious cost-
getsareexceededbytheintroductionof‘‘new’’documentation. effective suggestion, but in the ‘‘heat of the battle’’ you would
It should go without saying that reviewing 15 boxes of docu- be surprised how many clients and counsel seem to forget

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 this simple suggestion. Many attorneys and consultants will Costs escalate when documents are provided in a haphaz-

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charge for travel time since it is time devoted to your case ard and piecemeal manner, forcing the attorney or any other
and other work cannot be accomplished. While work can be member of the legal team to organize the documentation
accomplished on a plane, bus, or train, productivity may prior to the attorney’s review. Occasionally, I hear the com-
suffer. Some colleagues believe that uninterrupted rail, bus, plaint, ‘‘Why do I need to copy everything? I’m killing
or plane travel time gives them the opportunity to fully trees!!!’’ Well, use recycled paper when copying these docu-
concentrate on a case without the interruptions of the phone, ments. A strong word of caution—never give the attorney
and colleagues. However, as we all know, there is always your only original documents. In document-intensive cases,
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wasted time when traveling for either business or pleasure. some documents do occasionally get misplaced. It is much
Therefore, when document review and inspection are better to allow all of your documents or the requested docu-
more than a reasonable drive away, get details on what is ments to be copied, leaving the original files intact. How-
available to review, determine how many boxes there are, see ever, the original files, in whatever manner they were kept
if there is a file listing, etc. It may be more cost-effective to during the course of the project, should not be reorganized
copy all the documents rather than to travel and review the prior to the completion of discovery.
documents to determine what is or is not necessary. The easiest way to reduce the costs of educating the at-
Witnesses may also be in several locations. When inter- torney and expert concerning your case is for in-house (client)
viewing witnesses nothing can take the place of the synergy staff to organize the documents rather than counsel or the
that develops when you are face to face. However, more often experts. First, most attorneys will ask to see ‘‘all documents
than not, interviews will need to be conducted on more than related to the case.’’ What this means is that they want to see
one occasion. Use conference calls and/or video conferencing each and every piece of correspondence, including the
to obtain the best use of time. Rapport can be developed following:
over the phone and can be a good substitute for the synergy • Electronic mail;
of being face to face or it can lay the groundwork for such • Meeting minutes;
synergy. • Handwritten notes;
Additionally, try to set up the hearing at a convenient • Logs (transmittals, submittals, shop drawings, change or-
location so the least number of people have to travel. Also, ders, etc.);
try to have pre-hearing meetings held by way of conference • Daily reports or jobsite diaries;
calls. Traveling disrupts everyone’s schedule, so the less travel • Change orders;
necessary, the greater the cost savings realized. • Requests for information (RFIs);
• Job cost reports, and the like.
PRE-HEARING STEPS IN MINIMIZING COSTS A descriptive listing of the project files should be developed
AND MAXIMIZING RESULTS and maintained. The attorney can review the listing and chose
the desired documents. An example of a descriptive file listing
is ‘‘Incoming correspondence May to August 2003—This file
Document Discovery
contains all letters received by contractors, vendors, material-
men,owner,etc.’’
The description is better than just a file listing, but does it
‘‘The historian, essentially, wants more documents than
contain hard copies of incoming e-mails? The description of
he can really use,’’ Henry James, The Aspern Papers,
‘‘letters’’ would indicate that it does not, but merely listing the
1988.
file name of ‘‘incoming correspondence’’ would. Does it con-
Preparing for arbitration may require more time and,
tainshopdrawingsubmittalsand/ortransmittals,catalogcuts,
hence, more money because of the possibility of ‘‘surprises’’
or other items? While the title may indicate all correspon-
(Lyons 1985; Tolle et al. 1990) resulting from limited dis-
dence is included, the description noting ‘‘letters’’ will indicate
covery. So how to reduce costs? First, gather all of the
that submittals and/or transmittal cover sheets, and/or attach-
project’s documentation, and note, all means everything.
mentswouldnotbeincluded.
Again, I am often surprised that when I ask for all documen-
Organize the copies of documents in chronological order
tation, clients believe all means what is convenient to gather,
(mainchronology)withseparatebinderscontaining:
not everything. This leads to problems and problems lead to
additional costs. Prepare a listing and description of every 1. Meeting minutes
project and accounting file. Discuss with your legal team all 2. Submittals/transmittals
of the documents you may have concerning the project or 3. Daily field/foreman reports
dispute. If your legal team is experienced, it will generally 4. Schedules
know what is needed now and what can be held off for 5. Cost records, etc.
another time. Once all of the documents are gathered, then topical (issue)

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 files should be set up. These files must contain all the docu- Depositions

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mentation relevant to that issue, including correspondence,
change orders, meeting minutes, e-mails, daily field reports, ‘‘Ignorance never settles a question,’’ Benjamin Disraeli.
etc.Thedocumentsinthesetopicalfilesshouldbeorganizedin A colleague working with the AAA notes that some at-
chronological order so the story of the dispute unfolds in the torneys are the first to complain about the length and cost of
documents just as it did in the field. These issue folders will arbitration while also demanding that depositions are critical
give counsel an idea of what topics the parties believe are to their case preparation. There are generally three reasons for
important, and the chronological order will give the attorney a depositions: to gather information, to preserve testimony,
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flavor for what happened as the job progressed. Documents and/or to facilitate settlement. Nevertheless, preparing for
keptelectronicallycanalsobeorganizedinthisfashion. and taking depositions can be an expensive proposition.
Additionally, change order proposals should be organized Some arbitrators question the necessity of having depositions
with a listing of what proposals were accepted into change but when faced with demands for them by counsel for both
orders and which are in dispute. Are there letters regarding the parties, they will generally be allowed. What questions are
change order in dispute? If so, they should be kept in both the necessary to consider regarding the cost and time of a depo-
main chronological file as well as with the individual issue file. sition? Discuss the necessity of depositions with your legal
Bypresentingyourdocumentsinthisorganizedfashion,coun- team. What will the depositions accomplish? What ‘‘new’’
sel does not waste time and effort merely organizing information is sought? If the case is large or complex enough
documents, but can get right to the heart of the case. Just (and this is subjective) then depositions can be an effective
assembling and organizing the pertinent documentation will tool for learning the theory and approach that an opponent
save you thousands and perhaps tens of thousands of dollars in might be developing. Moreover, depositions may be critical
legal and/or consulting fees. Organization is the key to a well- if preserving testimony is necessary due to any number of
developedcase. issues such as the health of witnesses, their location, and
availability.
In summary, while depositions may be expensive, they
also may be necessary. However, they should not be sought
Motions unless a defined plan for their purpose is fully developed.

One should consider limiting discovery, particularly where

depositions and motions are concerned. It may not be worth Exhibits for the Hearing
the cost to draft a motion if the arbitrators will not rule on it
until after the hearings. It is always best to keep in mind that The legal team will generally prepare an arbitration book for
arbitration is not litigation although sometimes it seems to the panel. This book should include all of the exhibits to be
be evolving into it. Motions are a tool of the litigation pro- used at the hearing as well as contact information and the
cess and not necessarily as effective in an arbitration proceed- résumés of expert witnesses. It should be organized so as to
ing as they would be in a judicial setting. It is likely that provide a roadmap for the arbitrator(s) during the hearings.
some members of the panel will not be attorneys, and the The easiest way to organize documents is by chronological
impact of a motion may be a fizzle rather than the intended order, so if last-minute exhibits need to be inserted, that can
bang. be accomplished effortlessly. Also consider dividing the ex-
Moreover, arbitration is meant to be a quick and cost- hibits with monthly tabs. These are inexpensive and can be
effective binding resolution to a dispute. Some motions are readily found at office supply stores such as Office Depot or
heard before the actual hearings, but many are decided on Staples. The arbitration book should also contain a summary
after the hearing itself, when their effectiveness is often re- of the issues. This summary should refer to the exhibits in
duced. Before deciding on whether or not to request permis- the book. Preparing such a book forces counsel and the dis-
sion to submit pre-hearing motions, ask yourself, ‘‘If the putants to focus on and lay out the presentation of their case.
motion is not decided on until after all the hearings are Ideally, one combined book (both claimant and respondent)
completed, will it still be effective and worth the cost?’’ Also, is the dream of most arbitrators, but like most dreams, it
remember that panels often comprise at least one attorney generally does not come to fruition.
who may suggest oral arguments, which is another expense. Another important factor is to see if counsel can get to-
Weigh your options before considering motions, and ques- gether and stipulate which facts are not in dispute. This can
tion the arbitrators as to whether or not a pre-hearing deci- save time and money if both parties agree in advance on
sion will be made on the motion. When you have this certain issues, negating the need for some witnesses. A list-
information, then an informed decision can be made as to ing or some other written document concerning the undis-
the efficacy of the motion. puted facts can be included in the arbitration book.

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 Pre-hearing Conference Mediation

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It should go without saying that the parties should schedule Consider mediation, which has a high success rate and is
a telephone conference with the arbitrator(s) as soon as pos- consensual, during some step in the arbitration process. It
sible after the arbitrator’s appointment. If the arbitrator(s) do allows the other side to understand what your case is all
not schedule a conference, counsel should suggest it. At this about and vice versa. Mediation may, at the very least, allow
telephone conference the initial expectations of the parties the disputants to narrow their focus on important issues that
can further streamline the arbitration hearings. Moreover, the
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should be discussed. These expectations should include what

preparation work needed for mediation is similar to what
discovery is needed; the time-table for all discovery; dates for
would be necessary for arbitration, so if the mediation fails to
submission to the arbitrators of the arbitration book; ex- achieve a settlement, the work performed, with its resulting
changes of all expert witness reports; agreement on whether time and costs, is not wasted.
or not a site visit is necessary and whether that should take
place before, during, or after the hearing dates; and a sched-
ARBITRATION HEARING
ule of consecutive hearing days, if possible, or a schedule of
hearing dates with as few breaks as is feasible so that the
process flows smoothly. The parties, including the arbitra- Starting and Break Times
tor(s), should be held to the deadlines that are agreed upon at
this conference. The general rule is that the more a proceed- There are several ways you can expedite the hearing process.
ing is delayed, the more it will cost. The first is to establish the actual hearing time. Hearings
At this conference, discussions should also be held con- should begin no later than 9:00 a.m. With regard to morn-
cerning limiting the number of witnesses and exhibits. Some ing and afternoon breaks, they are a necessary evil but a
attorneys take everything and anything they can think to 15-minute break will generally stretch to 25 to 35 minutes,
include—a ‘‘kitchen sink’’ approach to witnesses and exhib- so suggest a quick 5-minute break which will probably
its. This is counterproductive to what used to be the primary stretch to 15 minutes. Lunch breaks should be no longer
purpose of arbitration, i.e., speed and low costs. Limits re- than 60 minutes. Consider ordering in food and seeing if the
garding how long a witness can testify also force counsel to parties will agree to a 30-minute lunch break. There may be
bring forth the main points of testimony without wasting some semantic issues with having separate rooms where the
parties will eat, and the like, but it is well worth exploring
time. The downside of this is that it may force both counsel
this issue during a telephone conference or the ‘‘housekeep-
and the witness to ‘‘practice’’ the testimony more, while the ing’’ portion of the hearing.
upside is short, pithy testimony. These options need to be
judged based on the case, the parties’ experience with litiga-
tion and/or arbitration, and counsel’s expertise. Housekeeping Issues
Unfortunately, some attorneys balk at limiting witnesses,
exhibits, and testimony time. These attorneys want every The housekeeping portion of the hearing is at the very start
opportunity to present every fact they believe would be ad- where the panel asks if there are any outstanding issues to be
vantageous to their clients, and this is a legitimate concern. brought before the panel. If there are open discovery issues, it
They approach arbitration, the testimony of witnesses and is much better to have these resolved before the actual hear-
presentation of exhibits as if it was a trial. However, I would ing via a telephone conference than to bring them to a hear-
suggest that not every fact needs to be argued before the ing. I sat on arbitration where the panel did not learn of
arbitrators who have knowledge and experience in construc- unresolved document discovery issues until the actual hear-
tion matters. As an arbitrator, I often want the attorney’s ing and it was decided that the hearings could not continue
until both sides had exchanged documents. This situation
questions to ‘‘cut to the chase’’ because the information they
could have been resolved weeks prior to the hearing if one of
are eliciting from the witness in excruciating detail is already the parties had alerted the panel or it was discussed during
understood. Arbitration and litigation are two separate, the telephone conference. In this case, the hearings were
binding dispute-resolution mechanisms. They share similar postponed for three weeks and the parties charged for half a
traits but unlike a judge or jury who may need to be day of hearing fees, merely wasting the disputant’s money.
educated about construction matters, the arbitrators should An arbitration that starts with the only open item being
be experienced construction industry professionals. This working through lunch time or ordering in lunch is on the
goes back to my ‘‘choosing wisely’’ argument noted right road to expediting the proceeding and maximizing
previously. hearing time.

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 Objections fairness of the process. Arbitration has been shown to be

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procedurally fair and as such, efforts to undermine this fair-
Presumably you have chosen fair-minded arbitrators who are ness should not be undertaken. However, you should en-
construction industry professionals, be they contractors, en- deavor to meet and, hopefully, exceed the arbitrating party’s
gineers, attorneys, or consultants who are familiar with arbi- expectations in terms of speed and efficiency when acting on
tration itself, and somewhat familiar with the matter at the above suggestions.
hand. Therefore, it is likely that they have more than a pass- There is a balancing act with any process seeking to
ing understanding of what is witness testimony, as opposed
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change or improve upon various alternative dispute resolu-

to attorney testimony. As an arbitrator, I understand that tion methodologies. Arbitration is meant to be a somewhat
sometimes those testifying are very nervous and no matter flexible process where the needs of the parties are considered
how practiced, they cannot answer the questions posed to
and strict rules and procedures, like those governing litiga-
them as satisfactorily as counsel would desire. Most arbitra-
tion, are not necessarily applied. The parties involved with
tors I have served with also understand this, and when attor-
neys ‘‘summarize’’ on behalf of their client, we understand the arbitration can seek to control its costs by assessing a case
that it is not the same as having the witness him/herself from a cost perspective, by establishing a realistic budget,
testify, but it can move things along while also reducing the and by keeping current as to where the arbitration costs are
emotional distress of the witness. So, we will generally allow being incurred and by whom. By controlling these costs, the
it. Opposing counsel will, at times, raise objections. This is disputant can reduce the fiscal and emotional stress of
understandable, but unless the testimony is thoroughly fruit- arbitration.
less, patently false, and a royal waste of time, it will be al- However, even if all of these suggestions are enacted, the
lowed. cost of the arbitration may exceed the value of the award.
A caution about objections—in one case I was involved There is a possibility that both parties may suffer more fi-
with, my client’s attorney continually voiced objections even nancial damage in paying for the arbitration than the award
after being advised by the panel that they understood his would deliver. This is a real possibility. One case I had in-
stance and that this was not a court. The panel allowed that volved a $25 million arbitration demand and $23 million
he had a standing objection to opposing counsel’s line of counterclaim. After both sides spent a combined $8 million
questioning. But this was not enough for this attorney, and on arbitration administration fees, arbitrator fees, travel, hear-
after what seemed to be the thousandth objection, the chair ing room costs, attorneys, consulting experts, witnesses, and
patiently said, ‘‘overruled’’ to which counsel replied by slam- expert witnesses, the net result was a $1.25 million award to
ming his fist on the table and shouting ‘‘that is not accept- the claimant. Obviously, neither party made any use of the
able.’’ This did not endear counsel to the panel nor assist our suggestions outlined here.
client’s case. Luckily, the chair, an experienced trial attorney, The overall result of arbitration should be a fair process
mediator, and arbitrator, suggested a short break so counsel where both sides believe that they fully put forth their case.
could speak to their clients. Needless to say, the client ad- Arbitration can be a venue where cost effectiveness, effi-
vised his counsel in very descriptive language colored with
ciency, and fairness work in consort.
interesting expletives that such outbursts were not to be re-
peated, nor were there to be any further objections.
In summary, objections are generally a waste of time and
when time is wasted, so is money. If you are planning to use REFERENCES
objections, use them judiciously and follow the lead of the Lyons, A. (1985). ‘‘Arbitration: The slower, more expen-
panel. sive alternative?’’ The American Lawyer, 7, 107–111.
Rubin, R. A., Fairweather, V., Guy, S. D., and Maevis,
CONCLUSION A. C. (1992). Construction claims: Prevention and resolution, 2nd
‘‘You can’t always get what you want, but if you try ed., Van Nostrand Reinhold, New York.
sometimes...you get what you need,’’ Mick Jagger and Tolle, J. R., Barton, W. B., and Mountain, M. J. (1990).
Keith Richards of the Rolling Stones. ‘‘Construction arbitration procedures. Edition II.’’ Construction
The previous suggestions may assist those participating Briefings, 12.
in an arbitration to recapture its manifesto in being faster Wordsworth, W. (1888). The complete poetical works, Mac-
and less expensive than litigation. However, these are not the millan, London.
only steps that can reduce costs. By working with your legal
team and the arbitrator(s), the parties may develop additional Kathleen M. J. Harmon, Ph.D., is a partner at Harmon/
strategies to reduce costs for their case. Nevertheless, stream- York Associates in Secaucus, N.J. She can be contacted
lining the arbitration should not undermine the inherent by e-mail at kharmon777@aol.com. LME

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