Arbitration is the process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision (West’s Encyclopedia of American Law).

Arbitration is somewhat similar to a court trial, but with more flexibility on discovery, evidence, briefing and argument. The rules that govern the arbitration will depend upon whether the arbitration is by order of the court or by agreement. The award may be binding or non-binding. Arbitration is private and may be confidential.

Whether by order of a court or contract, the parties usually pick the arbitrator and determine the manner in which the arbitration will proceed, within the confines of the governing rules. Review of the award is generally limited.

Briefing: Regardless of the dispute resolution process, briefing can aid the neutral in successfully resolving the dispute. The dispute resolution process can proceed without briefing, but the neutral will be required to spend session time gathering information, which may not be cost effective. Conversely unfocused, needlessly voluminous briefing may result in consuming the neutral’s time without imparting the information essential for disputes resolution. Ideally the briefing will be concise, spare and devoid of superfluous matter. Such “focused briefing” may be annotated with references to additional material, which the neutral may refer to for amplification or clarification of key issues.

Parties may also submit to the mediator only a confidential mediation statements in letter form setting forth an evaluation of the case and relief sought. The content of any confidential mediation statements will not be divulged to the opposing side without express authorization.

Confidentially is the cornerstone of the mediation process. Things confidential shall remain so unless and until there is specific authorization to disclose. In that regard, confidential briefing may provide the mediator with valuable tools for navigating through the rapids of the dispute, though indiscriminant labeling of briefs as confidential can be counterproductive. By contrast a shared brief with some strategically selected information set forth in a non-inflammatory way may provide grist for the mill of dialogue during the mediation.

Creating a focused brief will not only aid the mediator in being effective in resolving you dispute, you’re more likely to have a successful mediation by devoting a little extra time preparing. Consider giving the brief to your client to review.