Tuesday, June 27, 2023

Toolbox Talk Series Recap – Arbitration Motion Practice

In the June 22, 2023 edition of the Toolbox Talk Series, Adrian Bastianelli, Peckar & Abramson, P.C., and Brian Cashmere, Williams Mullen, moderated by Jennifer Millender of the American Arbitration Association (“AAA”), discussed motion practice in arbitration. Specifically, they offered advice on how to choose the right issue for a motion, how to get approval for a motion, how to write the motion, and how to get the arbitrator to grant it. They also discussed the pros and cons of motion writing in arbitration settings.

1.      How to choose the “right issue” for a motion in arbitration

The panel discussed what type of issues can, or should, be brought up in a motion in arbitration.  Cashmere stated that a clear and concise issue is best for this type of review.  For example, statute of limitations, notice, or contract interpretation issues may make great summary judgment or partial summary judgment motions.  Essentially, an issue that the arbitrator may resolve via primarily a question of law is more likely to succeed.  Bastianelli warned against submitting just any “available” motion, as the practice may turn the arbitrator against you. Both panelists mentioned the need to consider strategy before filing a motion—ask, “how will filing this motion help or hurt reachingArbi final resolution.”  Cashmere noted that sometimes the threat of bringing the issue to a hearing can put pressure on the adverse party in a way that is favorable to your client’s goals; possibly even more so than actually submitting the issue.

2.      How to get approval for a motion in arbitration

Bastianelli noted that, under AAA Rule 34, a party must first receive approval to submit a substantive motion before actual submission. Cashmere warned that some states, like California, do not typically allow motions, at all. Usually, where permitted, you must submit a letter to the arbitrator on why they should allow the motion, though Cashmere stated that sometimes the need for a motion may be raised during a case management conference. Both panelists stated that the key to getting approval for the motion is trying to convince arbitrator that your situation is the exception: the sometimes-unusual situation where the law is truly all they need to decide the issue.  They emphasized the need to make a case that the issue can be settled if the arbitrator allows a motion.  Bastianelli recommended making the arbitrator feel guilty; argue that arbitrator resolution of the issue on motion will save time and money.

3.      How to write a good motion in arbitration

The panelists also discussed how to write a convincing motion. Cashmere suggested sticking mainly to law and only mentioning truly uncontested facts, but only if they would help decide the issue.  If the motion can be solved purely through questions of law, as it should, then the panelists suggested leaving all the “messy” facts out. Bastianelli underscored that, like with any motion to a court, the motion should be well written and have adequate legal basis, so as not to waste time or upset the arbitrator.

As to timing of the motion, Bastianelli emphasized that if you can get the motion in before discovery is done, it could save everyone the time and money of doing discovery on what may become a moot issue.  The earlier the submission, the better.

4.      How to get the arbitrator to grant a motion in arbitration

The panelists confirmed that, once a motion is submitted, the chances the arbitrator will grant it are nonetheless low.  Out of five motions Cashmere submitted in arbitration, all five were denied.  Despite forty years of arbitrator service, Bastianelli can count on two hands the times he granted a motion.  The panelists discussed some of the reasons for this, including that almost every legal issue has a fact-dependent element.  Additionally, arbitrators may be concerned that, by excluding evidence, they may give the other party basis to vacate the award.

Both panelists agreed that, regardless of these obstacles, if your motion focuses on a pure legal issue and emphasizes that it saves everyone time and money, success on a motion is possible.

5.      Pros and Cons of motions in arbitration

In sum, the panelists provided some possible pros and cons that attorneys should consider when deciding whether to submit a motion during arbitration:


  • A potential to win on that issue?
  • Saves client time and money?
  • Costly to write the motion - is it in budget?
  • Will an unfavorable decision on the motion hurt the remainder of the arbitration?
  • Motions are rarely granted - will the time and effort be wasted if it does not actually move the case forward?

The goal is to use motions in arbitration to better serve your client.  While they should be used sparingly and are rarely granted, there can be times and places to make a motion in arbitration.

Click here to view the discussion in its entirety.  

Author Michael Zehner is a construction attorney with BBG Construction Law in Denver, Colorado.  Michael counsels clients on legal issues through all phases of their construction projects, from contract negotiation to completion of the work and beyond, with a focus on litigation.  Michael can be reached at mzehner@bbglaw.com.

Editor Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Douglas can be contacted at dmackin@cozen.com.

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