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This insightful guide to the arbitration process will help you achieve the best results for clients in all types of arbitration settings - from commercial to labor. John W. Cooley, an experienced judge, trial attorney, arbitrator, and mediator, and Steven Lubet, author of NITA's best-selling Modern Trial Advocacy have written this book to describe an up-to-date description of the arbitration process for advocates. You will get specific advice on:

•  The arbitration process
•  Prehearing considerations
•  Advocacy at the arbitration hearing
•  Effective openings and closings
•  Tactical considerations in shaping the process

Arbitration Advocacy, Second Edition, contains a chapter on attorney ethics and a chapter on cyberarbitration which explores the variety of online dispute resolution services available, the benefits and limitations with the use of cyberarbitration, and considerations in selecting a cyberarbitration service and cyberarbitrator.

Detailed checklists help you choose the appropriate arbitration forum and panel, and give guidance on drafting pleadings. The appendices include sample arbitration agreements and forms, commercial arbitration and ethics rules, a list of firms offering arbitration services, a list of ODR service provider Web sites, and procedures for online arbitration.

Reviews

"This guide to the arbitration process will help you achieve the best results for clients in all types of settings from commercial to labor arbitration. The book includes advice on how arbitration works, prehearing considerations, advocacy at the arbitration hearing, effective openings and closings, tactical considerations, and shaping the process. This Second Edition also contains new chapters on attorney ethics and cyberarbitration..."

      — Docket, April 2004

Authors / Contributors

Table of Contents

CONTENTS


Preface

Acknowledgements


CHAPTER ONE

General Description of Arbitration in the ADR Context


1.1 Overview of the Processes

1.2 Important Differences Between Arbitration and Mediation

1.3 Relative Advantages and Disadvantages of Arbitration, Mediation, and Court Adjudication

1.4 Mandatory vs. Voluntary Arbitration and Mediation

1.5 Initiating the Processes


CHAPTER TWO

Preliminary Pre-arbitration Considerations


2.1 Stages of the Arbitration Process

2.2 Application of Arbitration to Various Types of Disputes

2.3 Drafting the Arbitration Agreement

2.4 Selecting Cases for Arbitration

2.5 Indicator Guide for Selecting Cases for Arbitration

2.6 Choosing the Appropriate Arbitration Forum and Panel

2.7 Attorney Ethics

2.8 Considering Procedural Alternatives

2.9 Considering Site Inspection and Audiovisual Aids

2.10 Selecting Expert Witnesses

2.11 Considering Whether to Mediate First

2.12 Arbitrator Ethics

2.13 Lawyer Serving As Third-Party Neutral

2.14 Civility Guidelines


CHAPTER THREE

Prehearing Advocacy


3.1 Drafting the Arbitration Demand

3.2 Drafting the Response to the Demand

3.3 Drafting Motions and Responses

3.4 Drafting Position Statements

3.5 The Preliminary Hearing

3.6 Prehearing Discovery

3.7 Court Reporters


CHAPTER FOUR

Preparing for the Arbitration Hearing


4.1 Designing the Persuasive Trial Story

4.2 Preparing the Client

4.3 Preparing the Witnesses

4.4 Preparing the Exhibits


CHAPTER FIVE

Advocacy During the Arbitration Hearing


5.1 Procedural Rules

5.2 Opening Statement

5.3 Evidentiary Rules

5.4 Direct Examination

5.5 Cross-Examination

5.6 Impeachment

5.7 Expert Testimony

5.8 Foundations for Evidence

5.9 Shaping the Process Toward a Favorable Decision

5.10 Final Argument

5.11 Persuasive Techniques

5.12 Summary of the Elements of Classical Persuasion


CHAPTER SIX

Post-hearing Advocacy


6.1 Drafting Post-hearing Briefs

6.2 Requisites of an Award

6.3 Motion to Reopen Hearing or to Modify or Correct Award

6.4 Enforcing the Award

6.5 Challenging the Award

6.6. Appeal


CHAPTER SEVEN

Description of the Hybrid Processes


7.1 High-Low Arbitration

7.2 Baseball Arbitration

7.3 Fact-Finding

7.4 Co-Med-Arb

7.5 Summary Jury Trial

7.6 Mini-Trial

7.7 Simulated Juries

7.8 Special Masters

7.9 Early Neutral Evaluation

7.10 Expert Panels

7.11 Co-Mediation

7.12 Arb-Med

7.13 Binding Mediation

7.14 Hybrid ADR Process Selection


CHAPTER EIGHT

Effective Advocacy in Cyberarbitration


8.1 Basic Definitions

8.2 Types of Alternative ODR Services--General

8.3 Comparison of Face-to-Face, Telephone, and Written Communication in Arbitration

8.4 Benefits and Limitations of Cyberarbitration

8.5 Ethics of Cyberadvocacy

8.6 Considerations in Selecting a Cyberarbitration Service and Cyberarbitrator

8.7 Designing the Cyberarbitration Procedures Through the Vehicle of the Preliminary Hearing

8.8 Cyberarbitration Protocols

8.9 Cyberspace Netiquette

8.10 Gathering Relevant Internet Information


EPILOGUE


APPENDICES

A. Arbitration Forum and Panel Selection Checklist

B. Pleading Drafting and Preliminary Hearing Checklist

C. Client, Witness, and Exhibit Preparation Checklist

D. Arbitration Hearing Checklist

E. Post-hearing Advocacy Checklist

F. Sample Arbitration Clauses for a Commercial Contract

G. AAA Commercial Arbitration Rules

H. JAMS Comprehensive Arbitration Rules and Procedures

I. The Code of Ethics for Arbitration in Commercial Disputes

J. Selected ABA Model Rules of Professional Conduct--2004

K. Organizations Offering ADR Services

L. Online Dispute Resolution Organizations

M. Uniform Arbitration Act

N. Federal Arbitration Act

O. American Arbitration Association International Arbitration Rules

P. American Arbitration Association Supplementary Procedures for Online Arbitration

Q. Supplementary Rules of the E-Arbitration-Tribunal

R. 1958 New York Convention of the Recognition and Enforcement of Foreign Arbitral Awards

S. Arguments to Support Rulings on Various Motions and Objections During Arbitration Proceedings

INDEX