Arbitration Tips-N-Tools (TNT): Round 18

In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about advice for attorneys representing parties in arbitration where the other side is not represented by counsel, especially in a digital world, and faced with the complexities of the Covid-19 pandemic.

Round 18: What advice do you have for attorneys representing parties in arbitration where the other side is not represented by counsel— this can be one answer and off the cuff/short?

Responses:

A) Steven G. Shapiro

  1. Arbitrators are still subject to the human condition and to ideas of fairness. Counsel opposing a pro se party are obligated to zealously defend the client, but must guard against being aggressive to the point of seeming to take advantage of the pro se party

B) Imre Szalai

  1. Understand that the arbitrator, while remaining neutral and while not arguing the case on behalf of the pro se party or giving any legal advice, may give the pro se party a little more leeway when presenting their case in order to ensure they are heard.
  2. Also, be careful with ethics considerations, like ABA Model Rule 4.3, in all dealings or communications with the pro se party, such as in attempting to settle the case.

C) Erin Archerd

  1. Yes, you must still be a zealous advocate, but this is not a good time to use your superior procedural knowledge to nit-pick the pro se opposing party or bury them in a mountain of documents meant to keep them from finding relevant materials. This will only annoy your arbitrator and is likely to cause them to go a little bit easier on the pro se party than they might have otherwise.

author

Erin Archerd

Erin Archerd joined the Detroit Mercy Law faculty in Fall 2015. Prior to becoming a professor, she was an associate in the San Francisco office of Covington & Burling LLP, where she focused on corporate transactions, primarily in the information technology and biotechnology sectors, as well as preparing an amicus…

author

Steven Shapiro

Steven Shapiro teaches, writes, and speaks on topics in complex hospitality issues and construction law at the American University, Washington College of Law, blending his career in law firm practice, construction engineering, and academics. Recognized for innovation in bringing the realities and economics of commercial practice into the classroom and…

author

Imre Szalai

Professor Szalai graduated from Yale University, double majoring in Economics and Classical Civilizations, and he received his law degree from Columbia University, where he was named a Harlan Fiske Stone Scholar. After graduating from law school, Professor Szalai practiced antitrust law in New York City, and then he practiced complex…

author

Amy Schmitz

Professor Amy Schmitz is the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law. From 2016-2021 Professor Schmitz was the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and the Center for Dispute Resolution.…

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