At the ABA Annual Meeting, in the course of a panel on arbitration developments, veteran arbitrator Deborah Rothman tee-ed up a fascinating challenge. Clients regularly engage consultants in litigation. Why not in arbitration?
Indeed, isn’t the value of a consultant in arbitration much more evident? Arbitration has special challenges, different legal standards, truncated discovery and a distinct enabling procedural statute. And the unavailability of appeal puts far more emphasis on getting a right outcome. Rothman suggests that a very strong argument can be made for the arbitration consultant.
Arbitrators rarely see well-considered arbitration agreements. Some contractual arbitration clauses are pathological. Yet the arbitration panel is bound by the terms of that agreement. An expert who is steeped in arbitration law and practice can be of invaluable assistance in the drafting of the agreement, and subsequently in urging a panel’s interpretation of an agreement on terms favorable to the client.
During a trial, jury consultants are broadly accepted. Why is there not a similar receptivity to arbitration consultants? They can help an adocate and her client through sticky problems such as putitive class treatment, limits of discovery, seeking information from parties who are not signatories of the arbitration agreement, and other issues that are unique to the arbitration process.
A consultant who is familiar with members of the arbitration panel can also offer invaluable advice on tactical matters. Would this panel welcome an argument stated this way or that? Would the proffer of this evidence, or that brief, be received favorably? How can a point be presented to avoid (or, if sought, to provoke) an emotional response from the panel?
How can the proceeding be conducted to minimize (or maximize) the likelihood of establishing grounds for vacatur? When does an advocate press a panel and when does she defer? How should the panel be selected in the first instance? What information should be sought, and what questions should be posed, in pre-selection interviews of prospective arbitrators? How does one prepare for and conduct case management conferences, including seeking protective orders and other matters of unique importance to the client?
Rothman terms the arbitration consultant “a second set of neurons.” That is to say, it reflects not at all on the competency of counsel to engage on the team a consultant whose experience and instincts are a complement to — not a substitute for — counsel’s own. Taking a collaborative posture with counsel and client, the consultant enables counsel to take advantage of the flexibility that characterizes the arbitration proceeding, to yield both the legal and business result that the client seeks, and also to create an environment condusive to negotiation with the counterparty towards mutual business gains.
Nor are consultants suitable only in “bet the company” arbitrations. A consultant can offer insight into how to “streamline” a case, how to respond to “scorched-eath” discovery demands, and how to get the best outcome for the least financial outlay. Having a second, arbitration-specific, pair of eyes review critical pleadings and briefs may result not only in heightened probability of success, but also in substantial savings of money. This is particularly true where the consultant has served with one or more panel members in the past.
Deborah Rothman has raised an interesting prospect, and I will be curious to learn whether the bar picks up on it.