Ask lawyers why they chose arbitration and you will hear the same answers: speed, cost, control. Ask them again after the case closes, and the answers are sometimes less enthusiastic. The arbitration took longer than expected. Discovery consumed the cost savings. The flexibility they were promised turned into a process that looked a lot like litigation, minus the procedural guardrails.

This is not inevitable. It is a management problem.

I have been arbitrating long enough – both as an advocate and a neutral – to know where cases go sideways and what it takes to keep them on track. What follows is a brief account of how I run arbitrations – not as a matter of personal preference, but because I think the parties who chose this process deserve to get what they bargained for.

Start With a Real Conversation, Not a Calendar

Too many preliminary hearings are scheduling exercises dressed up as case management. My preliminary hearings are different.

I come in wanting to understand the dispute at a substantive level – not just the legal theories, but the actual controversy. What happened? What is genuinely contested and what is background noise? If I ask counsel directly what they agree on, the answers are often surprising. Issues that might drive motion practice turn out to be less central than assumed. Issues that have barely been mentioned turn out to be decisive.

That kind of early clarity pays dividends all the way through the proceeding. When you know what actually matters, you can calibrate information exchange to match it. You can structure the hearing around it. You can stop investing resources in the periphery. A phone call, disguised as a preliminary conference, that merely sets some dates does none of this.

The preliminary hearing can also surface something more valuable: a question that might be resolved early in the case. Consider a threshold liability issue, a damages methodology, a legal question on which everything else turns. When I can issue a partial award on an issue like that before the case fully mobilizes, the effect is often dramatic. Settlement conversations frequently develop after a pivotal ruling which resolves that discrete, crucial issue on which the parties’ dispute really hinges.

A Schedule Should Be a Commitment, Not a Guess

There is a version of scheduling in arbitration that is really just a shared fiction. Both sides agree to dates they find comfortable, with the quiet understanding that extensions will follow. I do not run cases that way.

When I build a schedule with counsel, I ask hard questions. Why does initial document exchange need three months? What drives that expert disclosure deadline? Is the proposed hearing date actually realistic given everything that comes before it, or is it aspirational? Those conversations are sometimes uncomfortable, but they are less uncomfortable than a case that slips many months because nobody asked them.

I work backward from the hearing. That is the fixed point – the day when we are all in a room hearing evidence and resolving the dispute. Everything else is organized to protect that date. I find that reversing the direction of the calendar changes how counsel think about interim deadlines. Each phase stops being an open-ended block of time and starts being a specific interval with a specific purpose.

But, as a four-decade trial lawyer, I understand that counsel have other cases and a family life outside our arbitration. So, if both counsel agree to extend compliance dates, I allow them to do so – with two exceptions. In order to keep the case on track, they cannot move the hearing date or any interim conferences without my permission and for a good reason. If there is no agreement, I only move dates for cause.

Information Exchange: Proportionate or Pointless

I have watched arbitrations where discovery costs exceeded what any realistic damages recovery could justify. That happens when nobody draws a line early enough, and the process takes on a life of its own.

My approach starts before the first request goes out. I ask counsel at the preliminary conference a straightforward question: what information do you need to prove your case or defend against your opponents? Not what you might want. Not what would be useful to have. What I want to know is what is important and relevant. That question, applied seriously, tends to cut the scope of document exchange by a third before anything formal happens.

A side note – I try to never use the term “discovery” in my arbitrations. It smacks of litigation and can put folks in the wrong mindset. Arbitration, after all, is not litigation sitting down. What is important in an arbitration is the exchange of relevant information.

One technique I use in the right case is requiring each party to produce the documents they expect they might rely upon – either in prosecuting or defending the claims – before any requests are served. Formal information exchange – whether by interrogatory, document request, or deposition – can then work to fill gaps, rather than being the starting point for discussion. This reduces the posturing and wasted fees that stock requests and automatically generated broad objections encourage.

Discovery disputes that do arise get handled fast, with short letters laying out each party’s position, a phone call, a ruling. No extended briefing schedules, no motion practice theater. The phone exists. Zoom exists. I use them.

Running the Hearing

By the time the hearing arrives, a well-managed arbitration has already done much of its work. The remaining job is to make sure the hearing itself is fair and just as focused as everything that led to it.

While I never compel counsel to use them, written witness statements are one of the more useful tools available. When a witness’s direct testimony is submitted in writing and only cross and redirect happen live, hearing time compresses significantly. Counsels’ time is spent on testing credibility, recollection, bias, and all the other issues which make up a good cross. Also, I can come into the hearing knowing the parameters of each witness’s testimony before they take the stand, which makes for a sharper proceeding.

I also recommend that expert testimony be organized by topic rather than by party. The conventional approach – all of claimant’s witnesses first, then respondent’s, then rebuttal – means experts on the same topic often testify days or weeks apart. Grouping opposing experts together is far more effective. The comparison is sharper in my mind, the record is cleaner, and the client avoids the costs of bringing their expert – who was probably sitting there while the opposing expert testified – back for his or her own testimony. These savings are particularly dramatic where the expert is flying in from some other city or country.

Pre-hearing stipulations on undisputed facts – dates, dollar amounts, the sequence of events – are well worth the time it takes to negotiate them. Stipulations give nothing away strategically and can eliminate hours of foundational testimony that serves no real purpose.

For smaller cases, I am a genuine advocate of the chess clock. Each party gets an equal amount of time, which they can allocate however they chose across opening, examination, and argument. When counsel both know the clock is running, the case gets better; it is faster, sharper, and more focused on what matters. The discipline the clock imposes is not a constraint on advocacy. It is a condition that brings out a better presentation.

Why Any of This Matters

Parties choose arbitration for a reason. When arbitration actually delivers a proceeding that is faster, less expensive, and focused on the real issues, it validates that choice. When the proceeding looks like uncontrolled litigation, it raises a fair question about whether the process serves anyone well.

Active management is not about the arbitrator asserting control for control’s own sake. A distinguishing factor of arbitration is the concept of party choice. However, part of my job as an arbitrator is to protect the value of the process the parties chose. That is what I try to do.

If I can help you resolve a dispute through arbitration or mediation, I welcome the opportunity. See my website, Reifadr.com, for more information on my background and practice.

David Reif, FCIArb
Reif ADR
dreif@reifadr.com