When serving as arbitrator, John Barker has the benefit of more than 30 years as a trial lawyer representing clients in jury and court trials, as well as in arbitrations. Click on the Bio link for a description of his litigation experience. To select and reserve a date for an arbitration hearing, click on the Available Dates page.
Arbitrations are conducted in a more formal environment than mediation, with adherence to procedural and evidentiary rules. The primary objective is an arbitration decision (known as an "arbitration award" whether for the plaintiff/claimant or the defendant/respondent) that is the result of a fair process conducted 'by the rules.' In arbitration, the plaintiff is called the 'claimant' and the defendant the 'respondent.' For the sake of simplicity and consistency throughout this website, they'll be called plaintiff and defendant here, as well.
What is arbitration?
Arbitration is a process in which a neutral arbitrator (or a panel of three arbitrators) considers evidence and decides the outcome of the dispute. The arbitrator acts as a jury in deciding the case, while also ruling on legal questions that arise in the arbitration, as a judge would in a courtroom trial.
How does arbitration differ from mediation?
The arbitrator decides the dispute. Arbitration usually concludes with an arbitrator’s award that is 'binding' on the parties. In mediation, the parties negotiate to an agreed resolution of the dispute, which is also 'binding' or enforceable in court, if a party does not abide by the decision. In other words, in mediation the parties agree on an acceptable outcome of the dispute, where in arbitration the arbitrator makes the decision for them.
What does the arbitrator consider?
The lawyers for the parties present evidence through exhibits and through witnesses, who are under oath, and testify in response to questioning as they would in court.
Is the arbitration as formal as a trial in court?
It is less formal than a court trial, but the objective is for the arbitrator to decide the dispute based on the evidence and applicable law, in other words, by the rules as it would be decided in court. The procedural rules at the arbitration are either those the parties have agreed will be followed, or rules imposed by the arbitrator when the parties cannot agree.
What procedure is followed at the arbitration hearing?
Generally, the plaintiff's lawyer gives an opening statement, followed by an opening statement from the defendant's lawyer. Then, the plaintiff's lawyer begins the plaintiff's case by presenting testimony of witnesses and offering exhibits in evidence. The defendant's lawyer can cross-examine the witnesses. Next, the defendant's lawyer presents the defendant's case in the same way, with the plaintiff's lawyer having the opportunity to cross-examine. The lawyers then make closing arguments for their clients and the arbitrator either announces the decision then or later, if more study of the evidence is necessary or the arbitrator would like to write out the decision.
Are the rules of evidence followed in the arbitration hearing?
They should be followed because they tend to insure fairness in the hearing process. A common complaint about arbitration hearings is their tendency to be too informal, with the rules of evidence relaxed or ignored. The result can be problems such as the admission of hearsay testimony, which is not subject to cross-examination. The arbitrator's decision can be influenced by evidence that could not be presented in court, if the procedural and evidentiary rules are not followed. An effort is made to follow the rules so the parties and their lawyers know what the playing field will be before the hearing starts.
Is arbitration 'binding' on the parties?
Yes, almost always it is binding. An arbitrator's decision is binding if the parties have so agreed beforehand or the law requires that it be binding. Seldom is arbitration non-binding because the goal is to bring an end to the time and expense involved in resolving a serious dispute.
Is the arbitrator aware of prior settlement discussions between the parties?
No, this information should not be made known to the arbitrator, to avoid any potential for the arbitrator to be influenced by what the parties might have done in negotiations before the arbitration hearing.