Of course, the first step in the education process is to become well versed in the official rules of your applicable forum. If some rule or issue is unclear to you, it is important to contact the AF staff or an experienced participant for clarification. Knowing the rules is one of the easiest ways to avoid learning basic lessons the hard way.

It is best to learn about the AF process from as many sources as possible, which includes experienced co-workers, administrators and panelists, defense and subrogation attorneys, and even other companies via their contentions. A new participant would be well advised to read some applicant and respondent sample contentions before attempting to enter the process. Even a seasoned veteran can benefit from a colleague's handling of a similar case in the past. Virgil, the famed Roman author of the classic Aeneid, once noted that a person should only “believe one who has proved it.” Likewise, it is crucial that experience and training be gained from those 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 the process and allow you to become more familiar with what will win and what will lose a case. For those who do not have the time or opportunity to become an arbitrator, make sure all of the AF publications are available. These periodicals are geared towards educating participants and helping them to improve their overall AF experience.

All in the Approach

Monimus the Cynic was an ancient Greek who became famous for his saying that “everything is just an impression.” This sentiment is a commonplace reality in the AF arbitration process. Even if the facts would lend themselves to a different outcome, arbitrators are not omniscient and cannot decide cases based on reasons that have not been presented to them. Unanswered or unanticipated arguments, unexplained details, and even a general lack of organization can give the impression of an insufficient basis for the prosecution or defense of an arbitration.

Some of the most frequent mistakes with contentions are simply due to insufficient critical thinking. Carefully consider before admitting unfavorable points. Many decisive counterarguments are made possible through an ill-considered comment or admission that an opponent's investigation would not have allowed possible. Conversely, there is a danger in making contentions that are far stronger than your evidence. Stretching a weak argument can be seen as evidence of ignorance or poor reasoning, and it could jaundice your case in the eyes of the panelist. Focus on the strengths of your case and try to avoid arguments that are unlikely to be considered persuasive.

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

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

Likewise in Arbitration Forums, contentions have no value if not backed up with sufficient, quality documentation. While keeping in mind the common AF rule that decisions must be based on evidence, every participant should also remember that AF does not have formal evidentiary rules. As such, circumstantial evidence and some types of hearsay can influence an arbitrator's decision in certain circumstances.

This focus on evidence-based decisions along with the aforementioned lack of formality should be seen as an opportunity for creativity. While being careful not to introduce documentation that appears irrelevant or unnecessary, participants can consider a multitude of options to bolster their cases (see sidebar at end of article, Opportunity for Creativity).

Evidence can be impressive not only for what it proves but also for its overall effect on the mind of a panelist. Sufficient and thorough evidence suggests both a quality investigation and a thorough knowledge of the factors surrounding a claim. But remember: Evidence must always be listed on the contentions sheet to be considered by the arbitrator!

Although thinking outside the proverbial box is important, standard types of evidence usually wins cases. Arbitrators often do not accept log entries or recorded-statement summaries as sufficiently credible. Of course, neglecting to take statements from all relevant parties can be a de facto admission that you have not completed your investigation and may provide a huge opportunity for your opponent to exploit. Scene diagrams and photos can save the day — especially when law enforcement has not done a thorough job. A statement from the police officer, though at times difficult to obtain, also can provide a needed edge when the official report is either too brief or does not address a critical factor in your case.

If you are in possession of the other party's estimate for repair or have inspected the damages yourself, you may have a strong opportunity to successfully defend an arbitration on damages. When there are multiple industry-accepted valuation sources (as with vehicles), you will usually find it more worthwhile to critique the use of the source rather than the source itself. Always remember that uncontested damages are generally considered to be not at issue.

When working outside of a familiar venue, researching statutory or case law may be vital for the success of your arbitration. Although rules of evidence are informal, forums generally hold that decisions “shall be based on local jurisdictional law and practices.” Due to North Carolina's escalating problems with rate evasion in recent years, I have become increasingly familiar with some of the subtle differences in arbitrations in several other states. Talking with a defense attorney or an adjuster from another area of the country can be immensely helpful in shortening the learning curve when crossing state arbitration lines.

Decisions, Decisions

AF decisions are final and binding without the right of a second hearing or appeal. Although there are limited exceptions for correcting a clerical or jurisdictional error, a decision made is generally a decision that stands. The finality of the outcome is something that needs to be both prepared for and accepted, as this aspect contributes to the low expense and relative quickness of the process.

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

Second, decisions may be rendered based on reasons that are not fully known and cannot be properly evaluated by the participating parties. As there is no discovery process with AF, participants usually do not gain access to the full range of evidence under consideration at a hearing.

Third, always carefully read the wording of an arbitrator's decision, 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 “law of large numbers” in combination with your due diligence in preparation should make arbitrator blunders an infrequent and ultimately negligible part of your AF experience.

Although some arbitrations can be lost due to circumstances beyond the control of the individual participants, good preparation and careful planning can be used to minimize the unexpected and improve your overall success in Arbitration Forums. After determining what forums and services are most appropriate for your company, make sure to maximize your staff's experience and training to increase your opportunities for success. As the Roman sage Seneca aptly noted, “Luck is what happens when preparation meets opportunity.”

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