There is an ancient Greek fable told by Aesop in which Tyche,the goddess of fortune, becomes weary with mortals who criticizedher for their bad luck. In frustration, she calls out to a workmanwho had fallen asleep at the edge of a well, fearing that he wouldfall in and her reputation would suffer further. After shouting athim to wake up, she remarked, “People blame me for everything thathappens to them, including the unfortunate events and tumbles forwhich a person really only has himself to blame.”

Likewise, most losses in Arbitration Forums (AF) cannot beascribed to some inexplicable whim of fate. Rather, missedopportunities and other participant errors are the principlereasons for unfavorable decisions. Proper preparation, solid andsufficient evidence, and quality contentions are the keys toincreasing your odds of success and outshining the competition.

Working the System

It is no secret that the modern legal system is extremelycomplex. As every defense attorney and insurance litigationrepresentative knows, an intricate system of laws, procedures,personalities, strategies, and even psychology goes into theprosecution and resolution of lawsuits. Although AF's process ismuch more streamlined and simplified (intentionally so), itnonetheless has its own set of written and unwritten rules andfactors that must be understood and capitalized upon in order toincrease the chances of success.

Of course, the first step in the education process is to becomewell versed in the official rules of your applicable forum. If somerule or issue is unclear to you, it is important to contact the AFstaff or an experienced participant for clarification. Knowing therules is one of the easiest ways to avoid learning basic lessonsthe hard way.

It is best to learn about the AF process from as many sources aspossible, which includes experienced co-workers, administrators andpanelists, defense and subrogation attorneys, and even othercompanies via their contentions. A new participant would be welladvised to read some applicant and respondent sample contentionsbefore attempting to enter the process. Even a seasoned veteran canbenefit from a colleague's handling of a similar case in the past.Virgil, the famed Roman author of the classic Aeneid, once notedthat a person should only “believe one who has proved it.”Likewise, it is crucial that experience and training be gained fromthose who have a demonstrated AF track record.

It is also extremely valuable to become an active arbitrator.Experience as a panelist will give you an insider's scoop on theprocess and allow you to become more familiar with what will winand what will lose a case. For those who do not have the time oropportunity to become an arbitrator, make sure all of the AFpublications are available. These periodicals are geared towardseducating participants and helping them to improve their overall AFexperience.

All in the Approach

Monimus the Cynic was an ancient Greek who became famous for hissaying that “everything is just an impression.” This sentiment is acommonplace reality in the AF arbitration process. Even if thefacts would lend themselves to a different outcome, arbitrators arenot omniscient and cannot decide cases based on reasons that havenot been presented to them. Unanswered or unanticipated arguments,unexplained details, and even a general lack of organization cangive the impression of an insufficient basis for the prosecution ordefense of an arbitration.

Some of the most frequent mistakes with contentions are simplydue to insufficient critical thinking. Carefully consider beforeadmitting unfavorable points. Many decisive counterarguments aremade possible through an ill-considered comment or admission thatan opponent's investigation would not have allowed possible.Conversely, there is a danger in making contentions that are farstronger than your evidence. Stretching a weak argument can be seenas evidence of ignorance or poor reasoning, and it could jaundiceyour case in the eyes of the panelist. Focus on the strengths ofyour case and try to avoid arguments that are unlikely to beconsidered persuasive.

Although the fee for filing an arbitration is usually nominal($40-$65), more can be at stake for frivolous filings than mountingfees and wasted time. Since arbitration panelists tend to hearcases from the same companies and participants on a regular basis,a poor reputation can be detrimental to your overall success due toa subtle-but-entrenched bias in the minds of panelists. It is muchmore profitable to devote time to a legitimate dispute than goingthrough the motions of filing or defending cases that are doomed tofailure.Submitting Quality Evidence

During my four years of living in the state of Missouri, Ibecame very familiar with the motto that adorns the state's licenseplate — “Show-Me State.” The motto essentially means thatMissourians want to see the proof before making up their minds.

Likewise in Arbitration Forums, contentions have no value if notbacked up with sufficient, quality documentation. While keeping inmind the common AF rule that decisions must be based on evidence,every participant should also remember that AF does not have formalevidentiary rules. As such, circumstantial evidence and some typesof hearsay can influence an arbitrator's decision in certaincircumstances.

This focus on evidence-based decisions along with theaforementioned lack of formality should be seen as an opportunityfor creativity. While being careful not to introduce documentationthat appears irrelevant or unnecessary, participants can consider amultitude of options to bolster their cases (see sidebar at end ofarticle, Opportunity for Creativity).

Evidence can be impressive not only for what it proves but alsofor its overall effect on the mind of a panelist. Sufficient andthorough evidence suggests both a quality investigation and athorough knowledge of the factors surrounding a claim. Butremember: Evidence must always be listed on the contentions sheetto be considered by the arbitrator!

Although thinking outside the proverbial box is important,standard types of evidence usually wins cases. Arbitrators often donot accept log entries or recorded-statement summaries assufficiently credible. Of course, neglecting to take statementsfrom all relevant parties can be a de facto admission that you havenot completed your investigation and may provide a huge opportunityfor your opponent to exploit. Scene diagrams and photos can savethe day — especially when law enforcement has not done a thoroughjob. A statement from the police officer, though at times difficultto obtain, also can provide a needed edge when the official reportis either too brief or does not address a critical factor in yourcase.

If you are in possession of the other party's estimate forrepair or have inspected the damages yourself, you may have astrong opportunity to successfully defend an arbitration ondamages. When there are multiple industry-accepted valuationsources (as with vehicles), you will usually find it moreworthwhile to critique the use of the source rather than the sourceitself. Always remember that uncontested damages are generallyconsidered to be not at issue.

When working outside of a familiar venue, researching statutoryor case law may be vital for the success of your arbitration.Although rules of evidence are informal, forums generally hold thatdecisions “shall be based on local jurisdictional law andpractices.” Due to North Carolina's escalating problems with rateevasion in recent years, I have become increasingly familiar withsome of the subtle differences in arbitrations in several otherstates. Talking with a defense attorney or an adjuster from anotherarea of the country can be immensely helpful in shortening thelearning curve when crossing state arbitration lines.

Decisions, Decisions

AF decisions are final and binding without the right of a secondhearing or appeal. Although there are limited exceptions forcorrecting a clerical or jurisdictional error, a decision made isgenerally a decision that stands. The finality of the outcome issomething that needs to be both prepared for and accepted, as thisaspect contributes to the low expense and relative quickness of theprocess.

If you receive an unfavorable decision, it is important to keepthings in perspective. First and foremost, remember that a jurytrial would have been much more expensive and time-consuming, yetstill may have yielded the same or similar results.

Second, decisions may be rendered based on reasons that are notfully known and cannot be properly evaluated by the participatingparties. As there is no discovery process with AF, participantsusually do not gain access to the full range of evidence underconsideration at a hearing.

Third, always carefully read the wording of an arbitrator'sdecision, as you may be able to determine if a mistake was made —one that can be rectified the next time around.

Finally, remember that arbitrator errors cut both ways. A “lawof large numbers” in combination with your due diligence inpreparation should make arbitrator blunders an infrequent andultimately negligible part of your AF experience.

Although some arbitrations can be lost due to circumstancesbeyond the control of the individual participants, good preparationand careful planning can be used to minimize the unexpected andimprove your overall success in Arbitration Forums. Afterdetermining what forums and services are most appropriate for yourcompany, make sure to maximize your staff's experience and trainingto increase your opportunities for success. As the Roman sageSeneca aptly noted, “Luck is what happens when preparation meetsopportunity.”

Barrett A. Evans, AIC, is a claim unit manager withInsurance House. He has been granted the Master Certified SpecialArbitrator designation by Arbitration Forums. He may be reached [email protected].