Arbitration is often described as “private litigation,” but that description misses important nuances. Counsel who approach an arbitration hearing as if it were a bench trial — with the same discovery scope, the same motion practice, and the same evidentiary assumptions — are likely to be surprised by the differences.
Here is a practical guide to what employment arbitration looks like when Mark Shank serves as the neutral.
Most employment arbitrations proceed under the AAA’s Employment Arbitration Rules and Mediation Procedures, JAMS Employment Arbitration Rules, or ad hoc rules agreed upon by the parties. Mark is experienced with all three frameworks and can help parties design a fair, efficient process at the preliminary hearing stage.
Unlike federal court, where discovery is presumptively broad, arbitration discovery is governed by a proportionality standard. Mark will allow sufficient discovery to ensure a fair hearing — document requests, a reasonable number of depositions, and targeted interrogatories — while avoiding the expense and delay of full litigation-style discovery. Counsel should be prepared to justify the scope of their discovery requests.
Employment arbitration hearings follow a structure similar to a bench trial: opening statements, direct and cross-examination of witnesses, documentary evidence, and closing argument. Mark applies the Federal Rules of Evidence as a guide, with appropriate flexibility. He will rule on evidentiary objections in real time and expects counsel to be prepared on the key legal and factual issues.
Arbitration awards are binding and enforceable under the Federal Arbitration Act (FAA) and the Texas Arbitration Act. Grounds for vacating an award are very limited — essentially fraud, corruption, or evident partiality. Counsel should understand that the award is, in most cases, final.
To discuss scheduling an employment arbitration with Mark, contact his office at (214) 641-9916.
Note: This article was prepared for general informational purposes and does not constitute legal advice. Readers should consult qualified counsel regarding their specific circumstances.
