The festive season is a time for sharing. I’m re-gifting to Arbitration Matters readers a present I received at the end of a complex arbitration. My co-counsel in the arbitration remarked, “You know, litigation muscle memory is really strong.”
Yes, it is.
This memorable comment captures a phenomenon that arises frequently in domestic arbitration, but which is not unknown in the international context as well. There is a strong tendency to default to litigation, which is for many advocates the dispute resolution norm. Litigation muscle memory should be expected and prepared for.
Arbitrating cases after years of litigation practice can be like driving on the left-hand side of the road. Familiar enough, surprisingly easy—when going straight ahead. But potentially confusing and dangerous when turning at intersections. Our driving muscle memory wants to return the car to the right-hand side of the road. Seriously heightened attention is required to prevent potential disaster.
Arbitration can be similar. Strong litigation muscle memory may be manifested by opposing counsel, the arbitrator, a reviewing court, co-counsel, and, indeed, oneself.
One point needs to be made up front: it is entirely possible to agree to follow standard litigation procedures in an arbitration. There may be reason to do so in exceptional cases—although this view could be a subject of lively debate. Risks arise when it becomes a habitual move. Opportunities for flexibility, efficiency, and savings that arbitration can afford may be squandered.
For this holiday, I hang by the chimney with care responses to some recent positions encountered in practice, evidencing well-developed, litigation muscle memory at work.
“We’re going to need oral discovery.”
Stocking stuffer # 1: Maybe. But necessarily? If the parties provide detailed memorials of their cases, with key evidence attached, including witness statement evidence in lieu of examination in chief, the opposing party’s case may be apparent.
“As a first step in this arbitration, we require extensive document discovery from your client.”
Stocking stuffer # 2: This is an old chestnut, although not roasted over the fire. Similar to stocking stuffer # 1, if the parties provide memorials, supported by key evidence with accompanying witness statements, detailed document discovery as a first step in the arbitration will not be required. Instead, discrete, and focussed document requests are usually best made, and better understood and considered by the arbitrator, after substantive briefing on the merits has occurred.
“We can’t meet the upcoming procedural deadline. We will instead provide you with X by Y date.”
Stocking stuffer # 3: Departing from a procedural deadline in arbitration is not a unilateral or bilateral decision. Resolution of the dispute became a trilateral matter when the arbitrator was appointed. The arbitrator may have arranged their work schedule around the procedural deadline now sought to be changed. At a minimum, the arbitrator should be kept up to date on changes to procedural deadlines upon which the parties agree. Depending upon the procedural step being changed, the arbitrator’s agreement may be required.
“We need to set aside several days of hearing time for direct evidence from our witnesses.”
Stocking stuffer # 4: Perhaps, but only rarely. Most, if not all, direct evidence in routine and complex arbitration disputes is commonly submitted by way of detailed written witness statements. The savings of hearing time and efficiency gains compared to litigation are substantial.
“We should set aside a day for oral closing.”
Stocking stuffer # 5: Maybe. But is it necessary? The arbitrator did not learn about the dispute on the first day of the hearing, unlike many trial judges. By the time of the close of the hearing, the arbitrator will have been steeped in the dispute, sometimes for months. The arbitrator will have made procedural rulings, reviewed party memorials, witness statements, and expert reports. Instead of more hearing time for oral closing, tight and confined written submissions with pinpoint references to the evidence, on questions of particular interest to the arbitrator may be more appropriate and helpful.
“In order to resolve cost matters we will need full production of all time entries and disbursements.”
Stocking stuffer # 6: Why? Similar to stocking stuffer # 5, liability for costs will be determined by an arbitrator, who has had responsibility for case management, has overseen a hearing, and rendered a Final Award. They know what happened. The arbitrator is not in the position of a court assessment officer, unfamiliar with the dispute, making taxation allocations or even a trial judge who has only seen the end of the dispute. In the arbitration context, summaries of time entries and works performed and invoices for key disbursements should suffice. If the arbitrator has questions about time and expense incurred, they can require additional support and explanation. But full production of dockets and invoices should not be the starting point to determine costs in arbitration.
These are a few examples. The main takeaway, the purpose of this “gift”, is to raise awareness. Litigation muscle memory is strong. It is often simply assumed: “this is how things are done”. Built-in litigation assumptions may be shared and mutually reinforced by arbitration actors; when one party wants to arbitrate, but the other party and the arbitrator default to litigation muscle memory, problems, delays, and frustration can arise.
How to counter the strength of the litigation muscle memory? First, awareness of the tendency is key. Recognizing this common default presumption may affect counsel, the arbitrator, and a reviewing court at least allows for planning. A properly drafted arbitration agreement can set arbitration norms and map out desired procedural steps. The arbitration agreement can also incorporate institutional procedural rules. Codification of arbitration norms with arbitration rules can help override litigation muscle memory, and direct dispute resolution to the correct side of the road.
However, arbitration counsel often become involved in disputes long after the arbitration agreement was reached. In the event no arbitration rules have been incorporated, there is still an opportunity to keep litigation muscle memory in check at the first procedural conference with the arbitrator and the other side. Litigation muscle memory will often flex here, and it is essential to have a clear plan to keep the dispute on an arbitration route. Failure to consider what arbitration features will benefit each case (and the options are plentiful) may result in an arbitration heavily laden with litigation process. It is fine if the client wants that. But it is equally disappointing if the client signed an arbitration agreement and now finds itself litigating in all but name. The latter is a “present” no cost-conscious client wants under its tree.