Expressing Your

Intent to Arbitrate,

A Guide
for the U.S.
Arbitration
Process
Written by

Chafica M. Khodr Agha, Esq.

Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Introduction
///

In most US states, the traditional format for arbitration is like trial. The arbitrator
acts as a judge, the parties deliver opening and closing statements, present
testimony, call expert witnesses, and offer documents through discovery.
Despite their similarities, arbitration is a fundamentally different process. Failure
to understand the required procedures may result in additional costs, and
possibly judicial intervention.

In this e-book, you will learn how parties in the

U.S. express their intent to arbitrate and examine
the main steps in the arbitration process.

Parties voluntarily participate in arbitration

mainly for two reasons: (1) there is a pre-existing
agreement stipulating that parties will refer
to arbitration for disputes arising from their
contractual relationship; or (2) parties agree to
seek arbitration for conflict resolution after a
dispute arises. Arbitration may be compulsory
for public sector employment disputes,
medical or legal malpractice cases, and court
annexed arbitration.

2
Table of Contents
///

Introduction 2
The Arbitration Clause 4
Is the Dispute Arbitrable? 6
Initiating the Arbitration Process 7
The Notice to Arbitrate 8
Filing Your Statement of Claim 9
Arbitrator Selection 10
The Discovery Process 13
The Hearing Process 14
The Award 15
Key Takeaways 16
Conclusion 17
Bibliography 18
About the Author: 19

3
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

The Arbitration Clause

///

The main takeaway here is that when you want to initiate an arbitration, it’s important to refer to your
arbitration clause for the terms that you initially agreed on. A valid arbitration clause stipulates the terms
for implementing future arbitration proceedings. Parties can be general or specific with their language,

Below is a valid arbitration clause taken from Law Insider:

Example

“All disputes arising under this agreement shall be governed by and interpreted in

accordance with the laws of New York, without regard to principles of conflict of laws.

The parties to this agreement will submit all disputes arising under this agreement

to arbitration in New York City, New York before a single arbitrator of the American

Arbitration Association (“AAA”). The arbitrator shall be selected by application of the

rules of the AAA, or by mutual agreement of the parties, except that such arbitrator

shall be an attorney admitted to practice law New York. No party to this agreement

will challenge the jurisdiction or venue provisions as provided in this section. No party to this

agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing

contained herein shall prevent the party from obtaining an injunction.”

4
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

T H E A R B I T R AT I O N C L A U S E ( C O N T I N U E D )
///

This arbitration clause (previous page) is highly

detailed and provides specific terms for an
implementing arbitration. Notice there are
references to:

• Using the procedural rules of a third-party

arbitration institution. Here, it is the American
Arbitration Association (AAA).
• The state law to be applied to all substantive
aspects of the arbitration. Here, the state law
of New York was chosen.
• The number of arbitrators that will be
assigned to the tribunal and the method for
how they will be appointed. Here the parties
chose (1) arbitrator in accordance with the
AAA rules and included a requirement that
the arbitrator be a licensed attorney barred in
New York.
• The venue of arbitration where all
proceedings will be held. Here, the parties
chose New York City as the venue, so
arbitration hearings cannot be held outside of
New York City unless they mutually agree.

5
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Is the Dispute Arbitrable?

///

The existence of an arbitration provision in The NYSBA provides several questions to help
an agreement doesn’t guarantee arbitration. assess the arbitrability of a dispute:
The parties must also determine whether their
dispute is “arbitrable”. 1. Is the agreement to arbitrate in writing
and who is bound by its terms?
How do you determine if a dispute is arbitrable?
Section 2 of the Federal Arbitration Act (FAA)
2. Are all parties to the arbitration included
in the written agreement to arbitrate?
requires that the agreement is also in writing.
Further, it mandates that the parties seeking 3. Does the underlying contract involve
arbitration and subject to the arbitration, be “commerce?” (Note* disputes related to
bound by the terms of the original agreement. commerce or affecting commerce are
considered as “involving commerce”).
Lastly, according to guidance released by the New
York State Bar Association (NYSBA) on domestic
4. Does state contract law create grounds,
such as fraud, lack of capacity, or
arbitration, the FAA requires that an agreement
unconscionability for revoking the
to arbitrate be embedded within a transaction
agreement to arbitrate?
involving commerce and be enforceable “save
upon grounds as they exist at law or in equity for 5. Does the arbitration clause include “any
the revocation of a contract”. and all” disputes arising under the parties’
contract, or is arbitration mandated only
for certain types of disputes?

If any of these issues requires an independent decision-maker or the

parties disagree over the answers to these questions, an arbitrator may
need to determine the arbitrability of the dispute.

6
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Initiating the Arbitration Process

///

Whether you are working with an

arbitration institution or conducting
your proceedings privately, the
process is quite similar.

Your agreement’s arbitration clause may specify

a third-party institution such as the American
Arbitration Association, Judicial Arbitration and
Mediation Services, or the International Center
for Dispute Resolution. This gives the third-party
the administrative jurisdiction to initiate an
arbitration proceeding. If the contract doesn’t
refer to a specific third-party institution, you
can reach out to the other contracting parties
to agree on one. Alternatively, parties can hire
an independent and experienced arbitrator to
manage a private proceeding.

7
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

The Notice to Arbitrate

///

One party will typically start arbitration by sending a “Notice to Arbitrate” or a

“Request for Arbitration” to the opposing party.

If you chose a particular institution to manage A. Required Documents

your arbitration, they will provide you with
a “Notice to Arbitrate” form that requests Most U.S. arbitration institutions and private
information on the parties involved, the attorneys arbitrators will need the following documents
involved, the issue(s) that will be arbitrated, and from each party to proceed with filing your case:
the type of relief sought.
1. The “Notice of Arbitration” explaining the
nature of your dispute and the
relief sought.
2. The governing contract with the
arbitration clause that references a
private arbitrator or use of the specific
third-party institution. If there is no
reference to either or no arbitration
agreement, the parties can submit s
signed agreement to arbitrate.
3. All supporting documents or exhibits in
support of your cases.
4. The required filing fees and
administrative costs.

Once the Claimant submits this information

to the Respondent, the Respondent will have
an opportunity to respond. If you are using a
third-party institution, a case manager will be
facilitating this process between the parties.

8
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Filing Your Statement of Claim

///

At this stage you notified the other

parties of your intent to arbitrate,
and they agreed. Then, you
contacted the third-party institution
you will be using or identified a
private arbitrator(s).

The Claimant then initiates an arbitration by

filing the “Statement of Claim”, which lays out the
relevant facts, remedies requested, supporting
documents and associated filing fees. In response,
the Respondent(s) submits an answer including
their version of the relevant facts and possible
defenses to the Claimant’s “Statement of Claim”.
At times, the Respondent may even have
additional claims they want to submit and can
include them in their answer as counterclaims.

If the Respondent fails to respond to the

Claimant’s “Notice to Arbitrate” and does not
provide an answer to the “Statement of Claim”,
the Claimant can have a court compel the
Respondent to join the arbitration and respond to
their requests.

9
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Arbitrator Selection
///

According to the American Arbitration Association’s rules on arbitrator selections, “if the parties have not
appointed any arbitrator(s) and have not provided an alternative method of appointment; then generally,
the case manager submits a list of potential arbitrators to the parties, and they may strike any names and
rank the remaining in order of preference.”

If parties cannot agree on an arbitrator(s) the case manager may appoint one. Often, U.S.-centric institutions
prefer the list selection process, while international institutions favor unilateral appointment. Unilateral
appointment may save costs because negotiations are minimized, however the parties’ have less control
over who the tribunal.

This is another crucial advantage U.S. arbitration

has over civil litigation. You can take full use
of the opportunity to select your arbitrator
by carefully vetting candidates, researching
backgrounds, and contacting trusted sources.
When considering potential arbitrators, look for
information reflecting:

1. The arbitrator’s level of impartiality and

objectiveness in their previous cases.

2. The arbitrator’s willingness to serve the

parties they are appointed by.

3. The relationship the arbitrator has with

other parties and arbitral institutions.

4. Whether the arbitrator takes security

measures to protect a client’s confidential
information during and after a case.

10
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

A R B I T R AT O R S E L E C T I O N ( C O N T I N U E D )
///

Many dispute resolution Possible questions to ask your arbitrator candidate:

institutions in the U.S.
include pre-appointment
1. What is your current workload or caseload?
interviews as part of
the arbitrator selection 2. How do you manage your caseload?
process. This is an ideal
3. Have you worked with any of the parties involved in this case?
time to ask questions.
Many arbitrators are 4. Do you have any prior or existing professional or personal
highly specialized and relationship with the case manager, other arbitrators, or
may offer their services involved parties?
to multiple institutions.
5. Describe the previous cases that you worked on, and the
Some arbitrators have
types of claims involved in those cases.
worked on thousands
of cases, increasing the 6. What is your experience with our case type?
possibility that they 7. How did you rule in previous cases of this type?
previously served parties
adverse to you. Therefore, 8. What other types of cases do you have experience with?
asking questions and 9. Can you describe the type of clients you worked with
vetting your panel is key. previously?

10. How many cases have you been appointed on at X arbitration

institution?

11. How many cases did you have where you ruled in favor of
the party that appointed you?

12. How many cases did you have where you ruled against the
party that appointed you?

13. Have you had to rule on emergency measures before? How

did you manage the situation?

14. What steps do you take to protect your client’s confidentiality

and data security?

15. Can you describe some of the awards you rendered previously?

16. Has a court ever reversed or modified an award you made in

arbitration proceeding?

17. Have you ever had a case that was appealed?

What happened?

11
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Initiating Discovery —
The Prehearing Conference
///

At this stage, the parties already submitted their “Statement of Claim” to each
other and selected their arbitration panel.

The Claimant(s), the Respondent(s), the case deadlines, and briefing and motion deadlines. The
manager, and the tribunal are now meeting for preliminary conference is a chance to make a first
a pre-hearing conference. Like litigation, the impression on the tribunal regarding the merits
arbitration panel meets with the parties for the of your parties’ claim or possible defenses.
first time and schedules hearing dates, discovery

To increase efficiency and save costs, you

should contact opposing counsel prior to
the pre-hearing conference to discuss your
current points of contention and consensus.

12
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

The Discovery Process

///

According to the New York State “Arbitration

Primer for Litigators”, if the parties refer to a
specific forum (e.g., labor and employment cases),
then parties should follow the forum’s applicable
rules, if any. Many arbitration forums have a list
of “presumptively” discoverable documents,
depending on the type of arbitration case. For
example, the American Arbitration Association
(AAA) published the “Initial Discovery Protocols
for Employment Arbitration Cases” which
lists documents that must be produced and
recommendations for search terms and other
parameters that govern the discovery process.
Like trial, discovery in arbitration is Similarly, the Financial Industry Regulatory
Authority (FINRA) has a “Discovery Guide” listing
the exchange of relevant documents
out producible documents for mutual exchange
in advance of a hearing. Limiting between the parties in all of its consumer cases.
In addition, the “Initial Discovery Protocols for
discovery to what is relevant and
Employment Arbitration Cases is presumptively
essential rather than the “leave no applicable to all AAA employment related
arbitration cases, unless the tribunal determines
stone unturned” approach is one
it is not to be used or the parties mutually agree
way to conserve costs. not to apply the rules.

13
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

The Hearing Process

///

Arbitration usually involves one or multiple hearings before a tribunal, where the parties’ counsel can make
opening and closing arguments and question the other party’s witnesses or experts. This can last from half
a day to many weeks or even months, depending on the type of issues and complexity of the case. Keep in
mind that many institutions may include additional steps or a variation of the process below. While private
arbitration may reduce some of the steps below to save on further time and costs.

The following steps are included to give an insight into what processes and procedures to expect in
arbitration hearings:

The Tribunal cites their authority to hear the The claimant and respondent’s counsel
case and reads the arbitration request and may conduct cross-examination in which
counter-request (if any) into the record. the parties are given a final opportunity to
The testimony of all parties and witness(es) examine each other.
will be sworn in and placed on the record. All The tribunal may question the claimant and
parties appearing at a hearing may be called the respondent as well as their witness(es).
as a witness. When the parties and tribunal members
The claimant/counter-respondent will present have no further questions, the claimant
a brief opening statement. and respondent may present uninterrupted
The respondent/counter-claimant will present closing statements.
a brief opening statement. The tribunal will then adjourn the hearing
The claimant/counter-respondent presents and decide on the merits of the case. They
his case and defense by offering testimony also determine the appropriate award to be
and evidence. rendered, if any.

The respondent/counter-complainant A decision is rendered in writing to the

presents her case and defense by offering arbitration institution. The case manager
testimony and evidence. then contacts the parties and releases the
written decision to them. If you have a private
The tribunal may question the claimant/
arbitrator, it is likely they will submit their
counter-respondent and the Respondent/
decision in writing to both parties at the same
counter-complainant immediately after
time via email and physical mail. This may
each has testified. If there are any witnesses
take anywhere from 15-45 calendar days.
brought to the stand, the tribunal may also
question them while they are on the stand. Once all evidence and arguments are
presented, the hearings will be closed. No
additional information can be discussed, nor
further evidence submitted.

14
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

The Award
///

According to Westlaw guidance on the U.S.

Federal Arbitration Act, the FAA contains certain
time limits regarding the confirmation and
vacation of awards:

• one year after the award to apply for

confirmation (9 U.S.C. § 9).

• three months after the award to move to

vacate, modify, or correct the award (9 U.S.C.
§ 12).
The award is the tribunal’s final State statutes usually include set limitation
periods for bringing claims that vary depending
decision and is binding, much like
on the category of claim. For example, in
a judge’s decision in a court case. New York:
However, a tribunal cannot compel either of the • six years for contract claims (CPLR 213).
parties to follow their decision. So, if the losing
party refuses to comply – the winning party must • three years for personal injuries and property
go to the appropriate federal or state court to damage (CPLR 214).
get the award confirmed. When a court confirms Parties can only appeal an arbitration decision
the award, it is equally enforceable to a court if they mutually agree on an appeal. Arbitration
judgement and parties can be held in contempt does not guarantee a right to appeal. If the parties
for a failure to comply. The party in contempt agree to appeal – they must treat the appeal
can be subjected to possible fines, sanctions, process like a completely new case filing.
garnishment of wages, and even in rare
cases, incarceration. Under U.S. federal law, an award can be vacated,
modified, or partially corrected only in specific
instances such as fraud, duress, or gross lack
of impartiality by the arbitrator. Further, if the
tribunal answered questions of law or fact
that it should not or erroneously applied the
law(s) – parties can ask request that the award
be set aside or sent back to the tribunal for
reconsideration.

15
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Key Takeaways
///

Here are a few takeaways from this article to help

you envision the arbitration process from a big-
picture view:

Arbitration requires an agreement to arbitrate Remember to take advantage of any

conflicts either in a pre-existing contract or a opportunity to interview your arbitrators and
separate agreement after a dispute arises. ask about their previous case experience.

Having an arbitration clause does not ensure The prehearing conference occurs after
that a dispute is subject to arbitration, parties arbitrator selection and is an opportunity to
must also assess the arbitrability of the establish schedules, timelines, and a roadmap
dispute. for the entire arbitration. Getting all parties
on the same page may help avoid additional
You must provide notice to all parties of your
costs and erroneous award.
intent to arbitrate a dispute, and it must be
in written form to abide by the U.S. Federal The arbitration discovery process comes after
Arbitration Act. the prehearing conference. It is expensive
but narrowing down the parameters of
If you refer to a third-party arbitration
what is relevant to the case can reduce the
institution to manage your case, you must
extensiveness of document production.
comply with their procedural and institutional
rules for providing notice. An arbitration hearing occurs after discovery
is completed and it can take anywhere from a
When you file a claim, the institution you
day to a few weeks or months. The structure
work with will likely have a “Statement of
of the proceeding is close to what we see in
Claim” form that parties are required to
trial, with opening and closing statements,
use. This form will include the required
witnesses, and cross-examination.
information needed to file the case.
An arbitration award is final and non-binding;
Arbitration selection occurs soon after parties
it can only be appealed with the consent and
agree to arbitrate. It is the most important
mutual agreement of all parties involved.
part of the arbitration process; pay close
attention to the professional background and After an appeal takes place, parties cannot
case experience of the arbitrator you appeal a second time and cannot litigate the
are appointing. same issues in a court of law, as principles of
estoppel will apply.

16
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Conclusion
///

In sum, arbitration is a complex and

private process that provides a final,
non-binding award.

It empowers parties to decide on the

procedures they want to employ and allows
significant discretion over the appointment of Many U.S. legal resources focus significantly on
arbitrators based on their industry experience litigation and because of the private nature of
and professional reputation. Arbitration in the arbitration, the information available to attorneys
U.S. is highly supported as an expedient form is limited. We encourage use of our articles
of conflict resolution that reduces the backlog and other arbitration guidance published by
of cases in our court systems. trusted and credible sources to supplement your
understanding of this rapidly changing field.
For additional Law Insider resources on Please check out the resources below for more:
arbitration, drafting enforceable arbitration
clauses, or even understanding international “Drafting Enforceable Arbitration Clauses”
commercial arbitration, kindly refer to Law by Chafica Khodr Agha, Esq.
Insider’s resources to support your efforts.
The key to success is understanding the
nuances and procedures that are used to “Is Your Arbitration Clause Complete”
support the arbitration process. by Diana Isyanova

“How to Write An International Commercial

Arbitration Agreement”
by Jasper Allen Barrientos:

17
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

Bibliography
///

Ad-hoc Arbitration and Business Contracts. Retrieved December 18, 2022: Link.

American Arbitration Association. (n.d.). Arbitrators & Mediators. AAA Arbitrator Selection | ADR.org.
Retrieved December 11, 2022: Link.

American Arbitration Association. (n.d.). Initial discovery protocols for employment arbitration cases - ADR.
Retrieved December 1, 2022: Link.

Arbitration procedures and practice in the United States: OverviewTh. Thompson Reuters. (n.d.).
Retrieved December 18, 2022: Link.

Chambers, B. J. B. at Q., & Joseph, B. (2020, October 29). Preliminary issues and issue estoppel in arbitration... proceed with cau-
tion. Arbitration Blog. Retrieved December 1, 2022: Link.

FINRA. (n.d.). Pre-hearing conferences. Pre-Hearing Conferences | FINRA.org. Retrieved December 08, 2022: Link.

Loiseau, D. (2022, March 1). Palm Beach County Bar Association. Retrieved December 18, 2022: Link.

Rogers, C. A., Brodlija, F., Dautaj, Y., Maria José Alarcon (Assistant Editor for Investment Arbitration), King, S., Powell, D., & Crestohl,
L. (2022, January 9). The three steps in appointing arbitrators, and which one is most important. Kluwer Arbitration Blog. Retrieved
December 18, 2022: Link.

Sperrow, J. (2019, April 10). Discovery in Arbitration: Agreement, Plans, and Fairness. Americanbar.org.
Retrieved December 18, 2022: Link.

Stewarts Litigate. (2022, August 12). Arbitration Process. Stewarts. Retrieved December 18, 2022: Link.

Using Arbitration to Resolve Legal Disputes. Findlaw. (2016, June 21). Retrieved December 18, 2022: Link.

What happens after the arbitrator issues an award – ADR? American Arbitration Association. (n.d.).
Retrieved December 18, 2022: Link.

Ad-hoc Arbitration and Business Contracts. Retrieved December 18, 2022: Link.

18
Expressing Your Intent to Arbitrate,
A Guide for the U.S. Arbitration Process GO TO TABLE OF CONTENTS

ABOUT

Chafica M. Khodr Agha, Esq.

Chafica Agha is a licensed attorney and consultant based in Miami,

Florida. She has over seven years of experience working with civil
litigation, civil justice, contracts, practitioner training, and alternative
dispute resolution.

Chafica began her career in Washington, D.C. at the National Center

for Victims of Crime managing the trial attorney referral program
and a high volume of civil cases involving third-party liability. She
also co-created a national training program for law enforcement and
prosecutors to address crime issues with federal resources from the
U.S. Department of Justice, and institutional support from the Bureau
of Alcohol, Tobacco, and Firearms (ATF).

In 2020, Chafica took her legal experience with negotiation and

building consensus to the private sector as a full-time legal
consultant specializing in contract management, civil litigation,
and mediation. She works in many issue areas, including anti-trust,
criminal negligence, employment, pharmaceuticals, insurance-
defense, and government contracts. Chafica also has a strong writing
and research background, with published work cited to in articles
and coursework by the University of California, Los Angeles, and the
International Association of Chiefs of Police (IACP), among others.

Currently, Chafica is becoming certified by the Florida Supreme

Court as a circuit-civil mediator. She will be featured on Florida court
rosters and offering private mediation services in 2023.

19