Hiring an Arbitration Lawyer for a Complex Dispute

Arbitration is not just litigation in a different forum. It follows arbitral rules, not civil procedure, and early decisions, such as claim framing, arbitrator selection, and confidentiality, can have a major impact on the outcome. For more than seven years, Dilendorf Law Firm has represented businesses and individuals in AAA, JAMS, and NAM arbitrations nationwide. Before hiring arbitration counsel, including our firm, consider these key questions.

1. What is my exposure if I lose?

Start with the downside, not the upside.

The AAA Commercial Rules allow the award to include “an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or the parties’ arbitration agreement” [1].

JAMS provides that the award “may allocate attorneys’ fees and expenses and interest” where the agreement or applicable law permits [2].

A prevailing-party clause plus a routine fee request in both parties’ pleadings is enough.

We have seen businesses file claims they believed were strong and leave the hearing owing the other side’s fees in excess of one million dollars. A lawyer who cannot quantify that exposure before you file has not read your contract closely enough.

2. What will this cost, and how will you bill me?

Arbitration has four cost buckets:

(i) provider administrative fees, which under the AAA “are based on the amount of any filed claim or counterclaim” [3];

(ii) arbitrator compensation, billed hourly or daily and deposited in advance;

(iii) expert witnesses, which complex technology, financial and damages cases almost always require; and

(iv) counsel.

Ask whether the firm will work hourly, on contingency or on a hybrid, whether it advances expert and provider costs, and for a budget through the final hearing, not through filing.

For individuals and small businesses under the consumer rules, the economics differ: the arbitrator may award fees “in accordance with applicable law” and may charge arbitration costs to a consumer only where the claim is frivolous or filed to harass [4].

3. How do the rules change pleading, discovery and motions?

The civil procedure rules you know do not apply.

An AAA demand needs only “a statement setting forth the nature of the claim including the relief sought and the amount involved” [1]; a JAMS demand requires “a short statement of its factual basis” and the remedies sought [2].

That brevity is a trap for lawyers trained on court complaints: the demand frames the fee exposure, the administrative fee and the arbitrator pool.

Discovery is whatever the arbitrator allows.

The AAA arbitrator manages information exchange “with a view to achieving an efficient and economical resolution,” and in large cases may order depositions only “in exceptional cases” [1].

JAMS allows each party “one deposition of an opposing Party” by right, with more only if the arbitrator finds them necessary [2].

Under NAM’s Comprehensive Rules, the arbitrator orders discovery as “necessary for a full and fair exploration of the issues,” and its cost “must be commensurate with the amount of the claim” [5].

Dispositive motions are permitted under the AAA rules “only if the arbitrator determines the moving party has shown that the motion is likely to succeed and to dispose of or narrow the issues” [1], and JAMS applies the same standard [2].

Ask how your lawyer wins the discovery you need at the preliminary hearing; there is rarely a second chance.

4. How will you pick the arbitrator, and can you remove one?

The arbitrator decides everything, and you choose from a list.

The AAA sends “an identical list of 10” names and gives each side 14 days “to strike names objected to, number the remaining names in order of preference” [1].

JAMS sends at least five names for a sole arbitrator; each party may strike two and rank the rest within seven days [2].

NAM uses lists of three to eight names depending on the format [5]. Ask how the firm researches a neutral’s award history and subject-matter fluency inside that window.

Removal is harder. The AAA disqualifies for “partiality or lack of independence” or inability to perform, and its decision “shall be conclusive” [1].

A JAMS challenge “must be based upon information that was not available to the Parties at the time the Arbitrator was selected” [2].

After the award, a court may vacate only on narrow grounds, including “evident partiality or corruption in the arbitrators” [6]. Pressing disclosures early and preserving objections is the leverage; ask how your lawyer does it.

5. Where will the hearing happen, and will it be in person?

Both major providers let the arbitrator decide. The AAA arbitrator sets the hearing method “including video, audio or other electronic means when appropriate” [1]; the JAMS arbitrator may conduct the hearing “in person or virtually by conference call, videoconference or using other communications technology” [2].

Where the parties, witnesses and documents sit drives cost, credibility and strategy. Ask what format your lawyer will push for and why.

6. Have you negotiated an AI provision in a protective order?

This is the newest question and the one most lawyers cannot answer. Protective orders now routinely govern how counsel may use artificial intelligence with confidential and attorneys’-eyes-only material, sometimes with stipulated irreparable-harm language that concedes the injunction standard in advance.

Federal agencies warn that data used to operate AI systems requires deliberate protection across the system’s lifecycle [7].

A party facing a large corporation without enterprise-grade AI tools, whose lawyer uploads protected documents to an open model, has created a breach claim against itself.

Ask what systems will touch your documents and whether the firm has negotiated these clauses before. We have.

7. How many complex arbitrations have you handled?

Not cases filed, but matters taken through strike lists, contested discovery, dispositive motions and final award, before which providers, and with what results. Litigators who have arbitrated twice will call the process simpler than court. It is not simpler; it is different, and the differences are where cases are won.

This article is for general informational purposes only and does not constitute legal advice. Provider rules and fee schedules change; the current versions govern. Reading it does not create an attorney-client relationship with Dilendorf Law Firm. Prior results do not guarantee a similar outcome. Attorney Advertising.