These excerpts are taken from Family Arbitration: Perspectives of a Practitioner and Trainer, written by Richard W. Shields. This content will be part of the upcoming 40-Hour Family Arbitration Law & Skills training. Learn more here.
The roles of the arbitrator in an arbitration vary depending upon whether the parties choose to proceed with a hearing. In any arbitration, there are three distinct stages – before the hearing, at the hearing, and after the hearing – described as follows:
Before the Hearing (select excerpts)
Interview prospective parties to inform them about the process, if not previously informed by their lawyers; in a family arbitration, refer the parties to an appropriately qualified professional to screen them for power imbalances and domestic violence; in a family mediation-arbitration, screen them for power imbalances and domestic violence; prepare the agreement to arbitrate…
At the Hearing (select excerpts)
Open arbitration by welcoming and seating the parties and their lawyers; invite opening submissions; administer oath or affirmation to witnesses; receive documents tendered as exhibits; rule on admissibility of evidence
After the Hearing (select excerpts)
Review evidence or final offers and arguments; make disposition of issues; prepare award with reasons; deliver award; respond to requests for amendments or additions…
The Roles of the Lawyers
The roles performed by the lawyers in an arbitration parallel those in a mediation at the outset when they assist their clients in its selection from the array of dispute resolution processes available to them. At such time as a decision is made to proceed with arbitration, the lawyers will then likely be called upon to select a qualified arbitrator. After screening and the determination that arbitration is an appropriate process, the lawyers will review the agreement to mediate or mediate-arbitrate prepared by the arbitrator. In family arbitrations, the parties must obtain independent legal advice before they sign a Family Arbitration or Mediation-Arbitration Agreement. The lawyers will prepare for and attend upon a pre-arbitration conference or hearing to plan the process. They will draft Statements of Facts, Issues, and Positions, assemble the documents upon which they rely, and create their Arbitration Briefs. The lawyers are the principal participants at the hearing: they question witnesses; they tender documents; and they make final arguments or submissions. On receipt of the Award, the lawyers may deem it necessary to request amendments or additions. A lawyer may arrive at the conclusion that the arbitrator mishandled the conduct of the arbitration and make application to court to have the Award set aside. Alternatively, he or she may believe that the arbitrator made an error in law or fact and decide to appeal the award. Finally, a lawyer will prepare the documents required to obtain an Order of the court incorporating the Award and seek to enforce it if necessary.
All content © Copyright by Richard W. Shields (2017).
Contents may not be reproduced or provided to others without the written permission of Richard W. Shields.