Checklists are great for most jobs at hand, as they sometimes can help validate or compare the processes with others and avoid overlooking critical steps.
For arbitration too, you need a proper plan so that everything goes as per clockwork precision. So, if you are planning to file an arbitration, here are some things you need to keep in the account.
Comb Through the Pre-Arbitration Procedures
A litigator’s main job in checking out the contractual dispute is to evaluate the contract’s dispute resolution and the various other governing law clauses.
But in certain cases, the contract requires certain procedures before a claimant initiates the arbitration process. For instance, if there is a certain period where the entire process of negotiation, mediation, or escalation takes place to senior management; one needs a proper investigation to find the best way to comply with these procedures. A claimant may directly approach arbitration if everything goes well.
Send Letters Before the Action Begins
The value of objectively dealing in negotiations over intensely contested issues, cannot be emphasized enough.
This holds true of letters as well, especially the part-exchanged letters before it reaches the arbitration table.
It is useful to settle the waters with a well-summarized letter that reduces disputes and leaves out any inflammatory language or characterizations and lists clearly what exactly you want to say and what are you planning to do about it. Send the letter with a proper signature from the party. It may not unblock negotiations what it may do is put forward a favorable correspondence preceding the arbitration procedure.
Reducing Risk of Internal and External Communications
With the rise of a dispute, it is natural to assume that speculations will be rife about the possible causes and consequences, often with an e-mail. Parties may get worried that their informal internal communications may come before an arbitration, even if they are subject to discussion before litigation on the party’s own country.
Bringing the communication to the attention of counsel, or keeping the counsel informed, may help retain the arguments related to privilege, where such documents are generally produced.
While it may not always be possible to correspond to the other party, people belonging to the party’s organization should confer prior to the procedure with counsel.
This may seem the right thing to do, however, witnesses are often surprised when they see the appearance of their e-mails or faxes produced by the opposition party in the arbitration. This does not mean the counsel must get involved with both parties. The counsel can stop themselves from getting involved by sending their letters via MS Word file that contains the meta data with the details of each and every person who was part of the draft.
Notifying Key Employees and Witnesses
Many prefer the civil-law style of arbitration over the common law for a variety of reasons. One of them is including the documents over the witness testimony as concrete evidence.
This makes good sense as more often than not there is a written document that involves most of the business disputes. As there is a growing sense of dissatisfaction with the witness testimony. The introduction of documentary evidence seems to be the safest bet for dispute resolution.
In most cases where witness testimony is anticipated, one should stop assuming that employee witnesses will always be available during an ongoing arbitration hearing. They may no longer be with either of the parties or in some cases may not be alive. Also, those who are alive may not want to come forward as they may be reluctant.
Thus it is important to reach out to all the potential witnesses, also ensuring that they will be available at the time of the arbitration procedure. In this case, the human resource and the supervising resources can take suitable steps to ensure the same.
Arbitration has key advantages over litigation, but like any other legal procedure, it needs a high degree of foresight and proper planning to yield success. The less you include in the initial arbitration agreement, the more problems you may face along the way, or have to travel on a path that you cannot control. It is important to use your proper judiciousness to ensure the arbitration process ahead is simple, minus any unpleasant surprises.