Checklist · Arbitration

Filing an Arbitration Demand and Preparing for the Hearing: A Practical Checklist

9 U.S.C. §§ 1

Type
Checklist
Jurisdiction
National
Date
2024-03-20
Topic
Arbitration

This checklist walks a commercial arbitration from the first strategic decision to the final award. It covers confirming that the clause actually reaches the dispute, choosing the right procedural track (expedited, standard, or large complex), drafting and filing the demand and statement of claim, paying the filing fee, answering and counterclaiming, selecting arbitrators through strike-and-rank and testing their disclosures for conflicts, running the preliminary hearing and locking in Scheduling Order No. 1, and getting the limited discovery arbitration actually permits. It then turns to the hard edges: third-party subpoenas under Federal Arbitration Act Section 7, emergency and interim relief, dispositive motions and the arbitrator's well-known reluctance to grant them, prehearing exchange of exhibits and witness lists, the merits hearing and the evidentiary record, post-hearing briefs, and the form of the award. A running example follows Trellis Manufacturing through a supply-contract arbitration against its aluminum supplier. Because an arbitration award is nearly impossible to undo on the merits, the hearing is the whole ballgame — this checklist is built to keep you from losing it on process.

Filing an Arbitration Demand and Preparing for the Hearing: A Practical Checklist

Arbitration > Alternative Dispute Resolution | Published 20 March 2024 - Updated 17 September 2025 | UpLaw - uplaw.us

In litigation, you get a second chance: motions in limine, post-trial motions, and an appellate court that will read the record fresh on questions of law. In arbitration, you get one hearing and an award that a federal court will confirm even if the arbitrator got the law flatly wrong. Prepare accordingly.

Keywords: arbitration demand, AAA Commercial Rules, JAMS, statement of claim, answering statement, counterclaim, arbitrator selection, evident partiality, preliminary hearing, scheduling order, arbitration discovery, FAA Section 7 subpoena, emergency arbitrator, merits hearing, reasoned award

How to use this checklist

Arbitration looks like litigation with the sharp edges filed off. That impression is the single most expensive mistake in the field. The procedural architecture is different at every stage: there is no complaint, no Rule 26(f) conference, no Rule 45 subpoena, no realistic summary judgment, and — critically — no appeal on the merits. What you build in the first ninety days is very close to what you will live with in the award.

This checklist runs the case in thirteen phases, from arbitrability through the reasoned award. Each phase carries real check items and a short "Why it matters, and the traps" note. It assumes a domestic commercial arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1–16, administered by the American Arbitration Association (AAA) or JAMS, though the structure transfers to CPR, ICDR, and ad hoc UNCITRAL proceedings with adjustments.

For the doctrinal foundation underneath every phase here, read AAA Commercial Arbitration From Demand to Award: A Comprehensive Guide and Arbitration in Practice: A Comprehensive Guide to Alternative Dispute Resolution. For the map of the whole subject area, start at Arbitration and ADR: A Toolkit for Choosing a Forum, Drafting Clauses, and Running a Case.

Our running example. Trellis Manufacturing, Inc., an Illinois fabricator, buys extruded aluminum from Castellan Alloys, LLC under a three-year supply agreement. Castellan shipped six lots of alloy that failed hardness spec. Trellis shut down a production line for eleven days, bought cover at a premium, and lost a downstream customer. Damages: roughly $3.2 million. The supply agreement contains a AAA commercial arbitration clause, seat in Chicago, Illinois law, "arbitration by a panel of three arbitrators," and a prevailing-party fee provision. Trellis is the claimant.

Phase 1 — Confirm arbitrability and pick the right rules track

  • [ ] Pull the operative agreement and every amendment; identify the exact clause you will invoke, and confirm your client signed it (or is bound as a non-signatory).
  • [ ] Read the clause's scope language: "arising out of or relating to" is broad; "arising under this Agreement" is narrower. Map each of your claims — contract, warranty, fraud in the inducement, tort — against that scope.
  • [ ] Check whether the clause delegates arbitrability to the arbitrator (an express delegation clause, or incorporation of AAA/JAMS rules, which most courts treat as clear and unmistakable evidence of delegation under First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), and Henry Schein, Inc. v. Archer & White Sales, Inc. (U.S. 2019)).
  • [ ] Identify conditions precedent: notice-and-cure periods, mandatory pre-suit mediation, executive negotiation windows, contractual limitations periods. Satisfy them before filing.
  • [ ] Confirm the statute of limitations — the FAA supplies none; the forum state's limitations period generally governs the underlying claim.
  • [ ] Confirm which arbitration statute applies. The FAA governs agreements in contracts "evidencing a transaction involving commerce" (9 U.S.C. § 2), but state arbitration acts still supply procedure in many cases — and there is no single nationwide rule on issues like non-party subpoena power, arbitrator disclosure standards, or the availability of appellate review. Most states have adopted some version of the Revised Uniform Arbitration Act (RUAA), but adoptions vary, and a handful of states (California, notably) run their own distinct statutory scheme. Check the seat state's act, and check your circuit.
  • [ ] Confirm the administering institution, seat, number of arbitrators, and governing law named in the clause.
  • [ ] Choose the procedural track. Under the current AAA Commercial Rules, the Expedited Procedures presumptively apply where no disclosed claim or counterclaim exceeds $100,000 (exclusive of interest and fees), and the Procedures for Large, Complex Commercial Disputes presumptively apply at $500,000 or more. Verify the thresholds against the edition of the rules in force on your filing date.
  • [ ] Decide whether to opt out of, or into, a track by agreement — parties may agree to expedited handling of a large case, or to a documents-only hearing.

Why it matters, and the traps

The scope question decides whether you are in the right building. Filing a fraud claim under a narrow "arising under" clause invites a motion to stay the arbitration and a fight in court over arbitrability — expensive, slow, and entirely avoidable by reading eleven words carefully. Conversely, a respondent who wants out of arbitration must raise the objection immediately; participate in the merits without objecting and you have waived it.

The delegation point is the one that surprises people. If the clause incorporates the AAA rules — and nearly every AAA clause does — the arbitrator, not the judge, usually decides whether the dispute is arbitrable. That is not a technicality; it changes who you are persuading and what record you build.

Trellis: the clause says "any dispute arising out of or relating to this Agreement," which comfortably covers Trellis's breach, breach of warranty, and consequential-damages claims. Trellis's demand is $3.2 million, so the Large, Complex Commercial procedures presumptively apply — meaning a three-arbitrator panel, a more robust preliminary hearing, and broader information exchange than a standard case. That single classification will drive the cost of the entire proceeding. If Trellis had wanted a leaner case, the time to say so was in the clause — see Drafting an Arbitration Clause: A Practical Checklist.

Phase 2 — Draft and file the demand and statement of claim

  • [ ] Complete the institution's Demand for Arbitration form (AAA) or Demand/Notice of Claim (JAMS).
  • [ ] Attach a Statement of Claim: a short, clean narrative of the parties, the contract, the breach, causation, and the damages theory.
  • [ ] Quote the arbitration clause verbatim in the demand and attach the agreement. Institutions will not administer a case without an arbitration agreement on its face.
  • [ ] State the relief sought with a number and a theory: compensatory damages, consequential damages, interest, specific performance, declaratory relief, attorneys' fees and costs (if the contract or a statute allows), and arbitration costs.
  • [ ] Expressly reserve the right to amend the claim and to seek interim relief.
  • [ ] Request the form of award you want — a reasoned award, or bare "standard" award, or findings of fact and conclusions of law. Ask now; it is much harder later.
  • [ ] Specify locale if the clause is silent, and be prepared to brief a locale dispute.
  • [ ] Serve the demand on the respondent in the manner the rules and the contract require, and file with the institution.
  • [ ] Calendar the respondent's answering deadline (AAA: generally 14 days from the AAA's notice of filing).

Why it matters, and the traps

The demand is not a federal complaint, and drafting it like one is a mistake in both directions. It need not satisfy Twombly/Iqbal — arbitrators do not dismiss for failure to state a claim, and pleading standards are not part of the architecture. But it is the first thing three arbitrators will ever read about your case, and it frames the dispute for the next eighteen months. Write it as advocacy: crisp, factual, confident, and short.

Two real traps. First, omitting a claim you have. Under the AAA rules, after an arbitrator is appointed, a party may not add or change a claim without the arbitrator's consent — so the cheap, unopposed window to add claims closes early. Second, naming the wrong respondent. Arbitration binds signatories; adding a parent or affiliate later requires a non-signatory theory (agency, alter ego, estoppel, third-party beneficiary) that you should decide on before filing, not after.

Trellis: Trellis pleads breach of contract, breach of the express hardness warranty, and breach of the implied warranty of merchantability; it demands $3.2 million plus prejudgment interest and fees under the prevailing-party clause. It requests a reasoned award — because it wants a document that can support collateral estoppel against Castellan's insurer, and because reasoned awards are more useful in settlement. It does not plead fraud, having concluded the evidence is thin; but it reserves amendment. On damages theory, work through Contract Damages: How Courts Make the Injured Party Whole and The Litigation Damages Toolkit: Valuing and Proving Money Awards before you fix the number.

Phase 3 — Filing fees, the fee schedule, and who pays what

  • [ ] Compute the filing fee from the institution's published fee schedule, which is tiered by the amount in controversy. State the claim amount accurately — inflating it inflates your own fee.
  • [ ] Budget the case management / administrative fee and the arbitrator compensation (hourly or daily, typically split 50/50 initially).
  • [ ] Confirm whether the clause allocates costs (e.g., "each party bears its own fees," or a prevailing-party provision) and whether that allocation binds the arbitrator's final cost award.
  • [ ] Check for consumer or employment rules — where they apply, the business generally bears nearly all of the arbitration costs, and the case is administered under different rule sets.
  • [ ] Reserve the argument that the arbitrator may reallocate all fees and costs in the final award.
  • [ ] Model the all-in cost against the value of the claim before filing. Three arbitrators at $800–$1,200 per hour each is a real number.

Why it matters, and the traps

Arbitration is cheaper than litigation only when the parties choose to make it so. The panel is a meter that runs. The most common budgeting failure is forgetting that a three-arbitrator panel triples arbitrator time on every call, every motion, and every hearing day — and that panel deliberation on the award is itself billed.

The strategic point: a respondent who refuses to pay its half of the deposits can stall the case. The AAA rules permit the arbitrator to suspend or terminate proceedings for non-payment, and permit the paying party to advance the other side's share and seek reimbursement in the award. Advance it, document it, and ask for it back with interest.

Phase 4 — The answering statement, counterclaims, and jurisdictional objections

  • [ ] Respondent: file the answering statement by the deadline (AAA: generally 14 days), even though failure to answer typically results in a denial of the claim rather than a default.
  • [ ] Assert all affirmative defenses: limitations, waiver, failure of conditions precedent, accord and satisfaction, limitation-of-liability and consequential-damages waivers, failure to mitigate.
  • [ ] File counterclaims with the answering statement and pay the associated filing fee — a counterclaim filed late may require arbitrator consent.
  • [ ] Raise any objection to arbitrability or panel jurisdiction explicitly and immediately, and preserve it in every subsequent filing.
  • [ ] If seeking to litigate arbitrability in court, move promptly under 9 U.S.C. § 4 (compel) or to stay the arbitration; if a court action exists, remember that under 9 U.S.C. § 3 a court must stay rather than dismiss a suit subject to arbitration when a party requests a stay (Smith v. Spizzirri (U.S. 2024)).
  • [ ] Note that procedural preconditions — notice, time limits, conditions precedent — are presumptively for the arbitrator, not the court (Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002); BG Group PLC v. Republic of Argentina, 572 U.S. 25 (2014)).

Why it matters, and the traps

Failing to preserve a jurisdictional objection is fatal, and it is easy to blunder into. Participating in arbitrator selection, taking discovery, and briefing the merits without objecting will be read as consent. Say it in the answering statement, say it at the preliminary hearing, and say it in the post-hearing brief.

The mirror-image trap belongs to claimants: do not sleep on the counterclaim risk. A prevailing-party fee clause cuts both directions, and a respondent with a real counterclaim can flip the economics of the case overnight.

Trellis: Castellan answers, denies liability, pleads the supply agreement's consequential-damages waiver (which, if enforced, guts most of Trellis's $3.2 million), and counterclaims for $410,000 in unpaid invoices. The waiver is now the whole case. Trellis's realistic exposure just changed, and so should its settlement posture.

Phase 5 — Arbitrator selection, disclosures, and challenges for conflict

  • [ ] Confirm the method the clause and rules specify: institutional list (strike-and-rank), party-appointed arbitrators with a neutral chair, or direct appointment.
  • [ ] On a strike-and-rank list: strike the arbitrators you cannot live with, and rank the rest. Do not over-strike — over-striking hands the appointment to the institution.
  • [ ] Research every candidate: published awards, reported vacatur decisions, prior appointments by opposing counsel or the opposing party, industry affiliations, law-firm and consulting relationships, published articles and speeches.
  • [ ] Match the profile to the case: an industry expert who will grasp metallurgy without a tutorial, or a retired judge who will run a tight evidentiary record? Ask which risk you fear more.
  • [ ] Read the disclosure statement line by line when it arrives, and run every disclosed relationship against your own conflicts database — including the arbitrator's other business (consulting firms, expert-witness practices, ownership interests).
  • [ ] Object promptly to any disqualifying relationship. Waiting until after an adverse award to raise a known conflict waives it.
  • [ ] Preserve a record of any challenge — institutional challenge decisions are usually not appealable, but the objection is your only path to later vacatur under 9 U.S.C. § 10(a)(2).
  • [ ] Note the arbitrator's continuing duty to disclose through the end of the proceeding.

Why it matters, and the traps

Selecting the arbitrator is the most important decision in the case, full stop. There is no appeal on the merits; the arbitrator is the law of your case.

Disclosure law is a live area. Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), held that an arbitrator's failure to disclose a substantial and ongoing business relationship with a party required vacatur for "evident partiality" — arbitrators must "disclose to the parties any dealings that might create an impression of possible bias." The circuits have spent fifty years narrowing and applying that. In Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019), the Ninth Circuit vacated an award because the arbitrator failed to disclose his ownership interest in JAMS combined with JAMS's substantial, repeat business with Monster. The Fifth Circuit, sitting en banc in Positive Software Solutions v. New Century Mortgage Corp. (2007), took a stricter view of what counts, holding that a trivial, undisclosed prior connection was not evident partiality. And the Second Circuit has held that an arbitrator who becomes aware of facts suggesting a conflict has a duty to investigate rather than remain willfully blind (Applied Industrial Materials Corp. v. Ovalar Makine (2d Cir. 2007)).

The practical rule: conflicts are cheap to raise before the award and nearly worthless after. The full vacatur framework is worked out in Confirming or Vacating an Arbitration Award: A Practical Checklist.

Trellis: the AAA sends a list of fifteen Large Complex Case Program panelists. Trellis strikes four (two with heavy defense-side metals-industry practices, two known for hostility to consequential damages) and ranks the rest. The chair ultimately appointed discloses that his firm's Dallas office represented a Castellan affiliate in an unrelated regulatory matter three years ago. Trellis does not move to disqualify — the relationship is remote and it likes the arbitrator — but it puts the disclosure and its non-objection in writing, which is exactly right: it keeps the record clean and prevents Castellan from sandbagging on the same fact later.

Phase 6 — The preliminary hearing and the scheduling order

  • [ ] Meet and confer with opposing counsel before the preliminary hearing and try to submit a joint proposed schedule.
  • [ ] Come prepared to state, in two minutes each: the claims, the defenses, the disputed issues, and what information you need.
  • [ ] Negotiate the information exchange: scope of documents, custodians, date ranges, ESI search terms and format, whether depositions are allowed and how many.
  • [ ] Set dates for: document exchange, depositions, expert reports and rebuttals, dispositive motion requests, exhibit and witness lists, prehearing briefs, and the merits hearing.
  • [ ] Fix the hearing logistics now: number of days, location or platform, whether there is a court reporter, whether witnesses may appear remotely, whether direct testimony comes in by written witness statement.
  • [ ] Address confidentiality: arbitration is private, not automatically confidential. Get a protective order.
  • [ ] Confirm the form of the award and, if you want a reasoned award, get it in the order.
  • [ ] Read Scheduling Order No. 1 when it issues, and object immediately if it does not reflect what was agreed.

Why it matters, and the traps

The preliminary hearing is where the case is actually shaped — and lawyers who treat it as a scheduling formality lose things they never get back. This is your one clean opportunity to obtain depositions, to define ESI scope, and to lock in a reasoned award. Arbitrators are enormously reluctant to expand discovery later; they will tell you, correctly, that you agreed to a schedule.

Preserve evidence in parallel: the duty to preserve attaches when litigation (including arbitration) is reasonably anticipated. Run Issuing a Litigation Hold and Preserving ESI: A Practical Checklist the week you decide to file, not the week the panel is appointed.

Phase 7 — Discovery in arbitration: what you can realistically get

  • [ ] Serve a narrow, targeted document request — not a federal Rule 34 set. Arbitrators reward proportionality and punish boilerplate.
  • [ ] Identify the five to ten documents that decide the case and build your requests around them.
  • [ ] Negotiate ESI protocols: custodians, search terms, date ranges, de-duplication, production format.
  • [ ] Take only the depositions you truly need — most panels allow two to five per side, often with time limits, and none at all in expedited cases.
  • [ ] Prepare a privilege log for withheld documents; the arbitrator will expect one even though no rule compels the federal format.
  • [ ] Raise disputes by short letter brief, not a motion package. Panels want a page or two per side and a call.
  • [ ] Know the enforcement mechanism: an arbitrator cannot hold you in contempt, but can draw adverse inferences, preclude evidence, and shift costs — powers the AAA rules expressly confer.

Why it matters, and the traps

Arbitration discovery is a rationing system, not a right. There are no interrogatories, no requests for admission, and no automatic disclosures. What you get is what the arbitrator gives you, and what the arbitrator gives you depends on how reasonable you looked at the preliminary hearing.

The habit to break: sending your standard federal discovery set. A 62-request Rule 34 template lands in front of a commercial arbitrator as a signal that you did not read the rules — and it costs you credibility you will need later on the motions that matter. For the underlying craft, Serving Written Discovery Requests: A Practical Checklist and Building a Privilege Log: A Practical Checklist translate well; the deposition craft is the same as in court, so work from Preparing to Take a Deposition: A Practical Checklist and The Federal Deposition Toolkit: From Notice to Trial Testimony, scaled down.

Trellis: Trellis asks for Castellan's mill certifications, heat-treatment logs, internal QC emails for the six lots, and the customer-complaint file for the same alloy over eighteen months. That last request — other customers' complaints — is the one that wins the case, and it is the one Castellan fights. Trellis gets it because it is narrow, date-limited, and obviously material. A 60-request omnibus set would have gotten it nothing.

Phase 8 — Third-party subpoenas and the FAA § 7 limits

  • [ ] Confirm that only the arbitrator — not counsel — may issue a summons to a non-party. 9 U.S.C. § 7 empowers the arbitrators to "summon in writing any person to attend before them ... and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case."
  • [ ] Understand the statutory limit: § 7 authorizes compelling a non-party to appear before the arbitrator and bring documents to that appearance. It does not, in most circuits, authorize a standalone prehearing document subpoena.
  • [ ] Check your circuit. The Second Circuit in Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210 (2d Cir. 2008), and the Third Circuit in Hay Group, Inc. v. E.B.S. Acquisition Corp. (3d Cir. 2004), held that § 7 confers no power to compel prehearing document discovery from non-parties. The Fourth Circuit in COMSAT Corp. v. National Science Foundation (1999) allowed it only on a showing of special need. The Eighth Circuit has read an implicit prehearing production power into § 7 (Security Life Insurance Co. of America v. Duncanson & Holt, 2000).
  • [ ] Use the workaround the statute blesses: schedule a preliminary or documentary hearing before the arbitrator (in person, and in the district where the arbitrators sit) at which the non-party appears with the documents.
  • [ ] Know that enforcement runs through the district court "for the district in which such arbitrators, or a majority of them, are sitting" — a real geographic constraint, and one that interacts awkwardly with Fed. R. Civ. P. 45's 100-mile limit.
  • [ ] Note that several courts have held § 7 does not permit compelling a non-party to appear remotely by video from outside that district — the Eleventh Circuit so held in Managed Care Advisory Group v. CIGNA Healthcare (2019).
  • [ ] Plan around the limits: get the documents from a party if you can, or seek the non-party's voluntary cooperation with a confidentiality agreement.

Why it matters, and the traps

This is the sharpest structural difference between arbitration and litigation, and the one most likely to blow a hole in a case. Counsel accustomed to firing off Rule 45 subpoenas discovers, six weeks before the hearing, that the key third-party records — the downstream customer's internal notes, the independent testing lab's raw data — are simply not reachable on the terms they assumed.

Trellis: Trellis needs the raw test data from Verrick Labs, the independent metallurgical testing firm Castellan used. Verrick is a non-party in Ohio; the arbitrators sit in Chicago. Trellis cannot serve a prehearing document subpoena in the Seventh Circuit's shadow with confidence, and hauling a Verrick custodian to Chicago runs into § 7's district limit. The solution: Trellis negotiates a stipulation with Castellan requiring Castellan to obtain and produce the Verrick data under its contract with the lab — an entirely ordinary move, and far more reliable than a § 7 fight. Where the parties will not stipulate, ask the arbitrator to convene a documentary hearing.

Phase 9 — Emergency measures, interim relief, and the interim award

  • [ ] If you need relief before the panel is appointed, invoke the institution's emergency arbitrator procedures (AAA's Emergency Measures of Protection; JAMS's equivalent). An emergency arbitrator is typically appointed within one business day.
  • [ ] Alternatively — and often in parallel — seek a TRO or preliminary injunction in court. Most circuits hold that seeking provisional judicial relief in aid of arbitration does not waive the right to arbitrate; confirm your circuit's rule and whether your clause expressly preserves the option.
  • [ ] Once constituted, the panel may issue interim measures: preservation orders, security for costs, attachment-like relief, and orders to maintain the status quo.
  • [ ] Consider asking for an interim or partial final award on a discrete, dispositive issue (e.g., liability, or the enforceability of a damages waiver). A final partial award on a separate claim can be confirmed and enforced under 9 U.S.C. § 9 while the rest of the case proceeds.
  • [ ] Preserve the record: interim relief is granted on a thin record, and you may need it later.

Why it matters, and the traps

Emergency relief in arbitration is real and underused. It is also fast, which cuts both ways — you will brief it in seventy-two hours on the evidence you have on hand.

The trap is enforceability. An "interim" order that is not final as to any claim may not be confirmable in court, and a respondent who ignores it may face nothing worse than an adverse inference. Structure the relief you want as a partial final award on a separable issue if you need judicial teeth behind it.

Phase 10 — Dispositive motions (and the arbitrator's reluctance)

  • [ ] Read the rule before you brief. The AAA Commercial Rules permit a dispositive motion only with the arbitrator's leave, and only where the movant shows the motion is likely to succeed and to dispose of or narrow the issues. JAMS's Comprehensive Rules take a parallel approach to summary disposition.
  • [ ] File a short letter application for leave — typically three to five pages — before drafting the motion itself.
  • [ ] Frame the motion around a clean legal question on undisputed facts: enforceability of a limitation-of-liability clause, a contractual limitations bar, a release, a failed condition precedent.
  • [ ] Do not move for summary judgment on a factual record with disputed testimony. You will lose, and you will spend $80,000 telling the panel your opponent's witnesses are lying — before they have testified.
  • [ ] Weigh the downside: a denied dispositive motion previews your theory and burns credibility. Weigh the upside: a granted one on a damages waiver can cut a $3.2 million case to $400,000.
  • [ ] Remember the panel's incentive: an arbitrator who denies a party its hearing risks vacatur under 9 U.S.C. § 10(a)(3) for refusing to hear material evidence. That incentive is structural, and it explains the reluctance.

Why it matters, and the traps

Arbitrators grant dispositive motions rarely, and for a rational reason: an award that survives is worth more than an award that gets vacated. The federal courts' extremely deferential review — an arbitrator's legal error, even a serious one, is not grounds for vacatur (Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013); Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008)) — protects arbitrators who hear the evidence and pushes them away from cutting a case short.

So: pick your spot, or don't shoot. If you have practiced in federal court, recalibrate from Moving for Summary Judgment Under Rule 56: A Practical Checklist — the substance of the legal argument transfers; the expectations do not.

Trellis: Castellan seeks leave to move for partial summary disposition enforcing the consequential-damages waiver. The panel grants leave — it is a pure question of Illinois contract law on an undisputed clause, and it would cut the case in half. Trellis opposes on the ground that the waiver is unconscionable as applied and that its cover costs are direct, not consequential, damages. The panel denies the motion but signals in its order that the direct/consequential line will be the central issue at hearing. That signal is worth more than the motion.

Phase 11 — Prehearing exchange: exhibits, witnesses, and briefs

  • [ ] Exchange exhibit lists and, in most arbitrations, the exhibits themselves — usually as a joint, pre-numbered, hyperlinked electronic binder.
  • [ ] Exchange witness lists with a short proffer of each witness's expected testimony.
  • [ ] Serve expert reports and rebuttals on schedule. Daubert does not govern in arbitration; the arbitrator hears the expert and weighs the testimony. That means a weak expert hurts you at the hearing, where it is expensive.
  • [ ] Prepare written direct testimony (witness statements) if the panel orders it — increasingly common, and it changes preparation entirely: your direct is a document, and the hearing is cross-examination.
  • [ ] File the prehearing brief: statement of issues, statement of facts with exhibit cites, legal argument, damages calculation.
  • [ ] Serve any hearing subpoenas for testifying non-party witnesses (arbitrator-issued, § 7).
  • [ ] Build the damages demonstrative you will actually use — a single page the panel can carry into deliberation.
  • [ ] Prepare stipulations of undisputed facts. Panels love them; they shorten the hearing and they lock your opponent down.
  • [ ] Confirm authentication of any digital or web-sourced evidence — see Getting Website Evidence Admitted: A Practical Authentication Checklist.

Why it matters, and the traps

Because the rules of evidence do not strictly apply, everything comes in — and the fight shifts from admissibility to weight. That is a different skill. Your job is no longer to keep the bad document out; it is to explain it before your opponent does.

The trap is hearsay complacency. "It all comes in anyway" is true and useless. A panel of three commercial arbitrators still discounts an unsigned, undated summary email prepared by a party's own consultant. Build the record you would build for a bench trial, and let the arbitrator decide how much it is worth. The organizational discipline of Preparing for Trial: A Pretrial Order and Trial Readiness Checklist maps almost cleanly onto a merits hearing.

Phase 12 — The merits hearing

  • [ ] Confirm the oath, the record (court reporter or recording), and the order of proof.
  • [ ] Deliver a tight opening: the panel has read your brief. Tell them the three findings you need and where in the record they will find each.
  • [ ] Present the case with exhibits on screen and a witness who can lay foundation for each.
  • [ ] Cross-examine to make two or three points per witness, not fifteen.
  • [ ] Watch the arbitrators. Unlike a jury, they will ask questions — and their questions are your best available read on the award. Answer them; then answer them again in the post-hearing brief.
  • [ ] Move any exhibit not yet in the record into evidence before you rest.
  • [ ] Preserve objections: a refusal to hear material evidence is one of the few real vacatur grounds (9 U.S.C. § 10(a)(3)). Make the offer of proof on the record.
  • [ ] Confirm the schedule for post-hearing briefs and the date the record closes.

Why it matters, and the traps

The hearing is the whole case. There is no post-trial motion practice, no JNOV, and nothing that functions like an appeal on the merits — a point developed at length in Damages in Arbitration: What Awards Look Like and Why They Are Hard to Undo.

The most common hearing failure is litigating to a jury that isn't there. Arbitrators are professionals; they are unimpressed by theater, they resent wasted time, and they have already read the exhibits. Speed, candor, and precision persuade them. Bluster does not.

Phase 13 — Post-hearing briefs, closing, and the reasoned award

  • [ ] Confirm whether the panel wants post-hearing briefs, simultaneous or sequential, with or without proposed findings.
  • [ ] Cite the hearing transcript by page and line, and the exhibits by number. This is the single highest-leverage document in the case.
  • [ ] Answer, directly and by name, every question an arbitrator asked at the hearing.
  • [ ] Submit a proposed damages calculation with the arithmetic shown, and an alternative calculation if a key ruling goes against you.
  • [ ] Submit your application for fees, costs, and arbitrator compensation, supported by invoices, if the contract or a statute permits fee-shifting.
  • [ ] Note the date the record closes — the AAA rules generally require the award within 30 days of the close of the record (longer in large complex cases).
  • [ ] Read the award for clerical or computational errors immediately; institutional rules give a short window (AAA: generally 20 days) to request modification of a computational, typographical, or technical error. This is not an invitation to reargue the merits.
  • [ ] Move to confirm under 9 U.S.C. § 9 within one year, or to vacate under § 10 within three months of delivery of the award.

Why it matters, and the traps

The form of the award matters more than most parties realize. A standard award says who wins and how much. A reasoned award explains why — which is what you need if you intend to use the result against an insurer, a guarantor, or a co-defendant, and what you need if you have any intention of challenging it. But a reasoned award also creates a document that can be parsed for error, which is why a party expecting to win sometimes prefers the bare form.

Whatever you want, ask for it in the demand and lock it into the scheduling order. Then go straight to Confirming or Vacating an Arbitration Award: A Practical Checklist — and understand before you start that the grounds in § 10 are narrow, exclusive (Hall Street), and almost never met.

Common mistakes to avoid

  1. Treating the demand like a federal complaint. It is advocacy, not notice pleading — and the window to add claims closes when the arbitrator is appointed.
  2. Skipping the conditions precedent. A mandatory mediation step or notice-and-cure period, ignored, hands the respondent a clean procedural defense.
  3. Choosing the arbitrator carelessly. This decision is worth more than every motion you will file combined. Research the candidates as if you were vetting a judge you could hand-pick.
  4. Sitting on a known conflict. Raise it before the award or lose it forever.
  5. Treating the preliminary hearing as scheduling. It is the only cheap moment to obtain depositions, define ESI scope, and secure a reasoned award.
  6. Serving federal discovery. Sixty document requests signals you do not know the forum, and it costs you the credibility you need on the request that matters.
  7. Assuming Rule 45 works. It does not. 9 U.S.C. § 7 is narrower, and in the Second and Third Circuits it will not get you prehearing documents from a non-party at all.
  8. Moving for summary disposition on a disputed record. You will lose, and you will show the panel your case first.
  9. Forgetting the fee clause cuts both ways. A prevailing-party provision plus a live counterclaim can turn a $3 million claim into a net loss.
  10. Believing you can appeal. You cannot. A serious legal error by an arbitrator is not a ground for vacatur. Prepare the hearing as though it is the only one you will get, because it is.

The consolidated checklist

Before filing

  • [ ] Clause read; scope confirmed; delegation analyzed
  • [ ] Conditions precedent satisfied; limitations period checked
  • [ ] Respondents identified (including non-signatory theories)
  • [ ] Track determined (expedited / standard / large complex)
  • [ ] Litigation hold issued; ESI preserved
  • [ ] All-in cost modeled against claim value

Filing and pleading

  • [ ] Demand + statement of claim drafted; clause quoted; agreement attached
  • [ ] Relief and damages theory stated; form of award requested
  • [ ] Filing fee paid; deposits calendared
  • [ ] Demand served; respondent's answering deadline calendared
  • [ ] Answering statement / counterclaims / jurisdictional objections filed and preserved

Constituting the panel

  • [ ] Candidates researched; strike-and-rank submitted
  • [ ] Disclosures reviewed against conflicts database
  • [ ] Objections raised promptly and in writing (or non-objection documented)

Building the case

  • [ ] Preliminary hearing prepared; joint schedule proposed
  • [ ] Scheduling Order No. 1 reviewed and confirmed
  • [ ] Protective order entered
  • [ ] Targeted document requests served; ESI protocol agreed
  • [ ] Depositions taken within the allotted number
  • [ ] Privilege log served
  • [ ] Third-party evidence secured (stipulation, cooperation, or § 7 hearing)
  • [ ] Emergency/interim relief sought if needed
  • [ ] Dispositive motion leave sought only on a clean legal question

Hearing

  • [ ] Exhibits and witness lists exchanged; joint binder built
  • [ ] Expert reports served; written directs prepared if ordered
  • [ ] Prehearing brief filed; stipulations negotiated
  • [ ] Hearing subpoenas issued by the arbitrator
  • [ ] Objections and offers of proof preserved on the record
  • [ ] All exhibits moved into evidence before resting

After

  • [ ] Post-hearing brief with transcript cites filed
  • [ ] Fee and cost application submitted
  • [ ] Award reviewed for computational error within the modification window
  • [ ] Confirmation (§ 9) or vacatur (§ 10) deadlines calendared

Primary Authority

A note before the list: several of the rules below are circuit-specific or state-specific, and this checklist does not assert a uniform national rule where none exists. The reach of an arbitrator's summons under § 7, the precise contours of "evident partiality," and the procedural mechanics supplied by state arbitration acts all vary. Confirm the law of your circuit and your seat state.

Statutes

  • Federal Arbitration Act, 9 U.S.C. §§ 1–16 — in particular § 2 (written arbitration agreements valid, irrevocable, and enforceable), § 3 (stay of litigation), § 4 (order compelling arbitration), § 5 (court appointment of arbitrators), § 7 (arbitrator's summons power), § 9 (confirmation), § 10 (vacatur), § 11 (modification), § 16 (appeals)
  • 9 U.S.C. §§ 201–208 (New York Convention; international awards)
  • State arbitration acts, including the Revised Uniform Arbitration Act (RUAA), adopted in a majority of states — check your state, as procedural details (including subpoena power, which is broader under RUAA § 17 than under FAA § 7) vary

Institutional rules

  • AAA Commercial Arbitration Rules and Mediation Procedures, including the Expedited Procedures and the Procedures for Large, Complex Commercial Disputes, and the Emergency Measures of Protection. Rule numbers change between editions — always cite the edition in force on your filing date.
  • JAMS Comprehensive Arbitration Rules and Procedures (exchange of information; summary disposition; awards)
  • ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes (2004) — Canon II (disclosure)

Cases

Secondary Sources

  • Domke on Commercial Arbitration
  • Born, International Commercial Arbitration (for cross-border matters)
  • Corbin on Contracts; Restatement (Second) of Contracts (for the underlying claims)

Related UpLaw Resources

Related Guides & Articles

Related Checklists

Related Toolkits

This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Arbitration rules, fee schedules, and the law governing arbitrator subpoenas and disclosure vary by institution, by circuit, and by state, and change over time; verify the current rules and consult qualified counsel before acting.