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Listing of All Issues for Discussion in the Arbitration Brief

Wednesday, February 18, 2026 3:17 PM | Anonymous

What is a legal brief and how do you ...

What are your thoughts on an arbitrator requiring counsel to list in advance all of the issues for discussion in the briefs? Will counsel then be more willing to accept just one round of briefs because every issue must be briefed in the first round? Do you see any potential problems with this approach?

What are your thoughts?

Comments

  • Wednesday, February 18, 2026 3:42 PM | Alvin Zimmerman
    I'm ok with this suggestion of listing all issues in the brief to be filed. I find that the attorneys still prefer to provide a reply brief.
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  • Wednesday, February 18, 2026 3:46 PM | jeffrey b. winton
    no it's not necessary in advance and there is very rarely more than one brief
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  • Wednesday, February 18, 2026 3:49 PM | Stuart Riback
    This is not a bad way to focus counsel's attention on what the arbitrator thinks is important. I do see a couple of problems with it. First, depending on what the issues are, one side may infer that the arbitrator has taken the other side's view of what is important. The other is that there may be things in the record that aren't obvious to the arbitrator that counsel may be saving for the brief. I generally want to let each side present their case as they like, with constraints being imposed via page or word limits and deadlines.
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  • Wednesday, February 18, 2026 3:51 PM | Erika Birg
    Requiring the parties to identify the issues being decided in the arbitration helps ensure that everyone is briefing the same questions and that the arbitrator stays squarely within the scope of the parties’ submission. That clarity is important to avoid later challenges that the arbitrator either exceeded or imperfectly executed his or her authority, which remain recognized grounds for vacatur. In practice, this approach often makes a single round of briefing workable, while still allowing flexibility for post-hearing briefing on the issues after the evidence is heard, if necessary. In sum, concrete issue identification pre-hearing promotes efficiency for the hearing, even though it may not eliminate the parties' desire for post-hearing briefing to show how the evidence supports their positions on the legal issues.
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  • Wednesday, February 18, 2026 3:51 PM | Jack Levin
    I often ask counsel to confer for the purpose of identifying issues to be briefed. This doesn't necessarily affect the number and timing of briefs. I do tell counsel that if they know an issue is in the case, they should brief it their opening submission. Holding back to see first what the other side says will not be rewarded.
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  • Wednesday, February 18, 2026 4:02 PM | Peter Altieri
    I find it most helpful in post hearing briefs. Having counsel address the same issues in the same order aids in deciding the issues. I don’t think it eliminates the need for reply briefs in complex cases but it certainly tends to focus and shorten the replies.
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  • Wednesday, February 18, 2026 4:05 PM | Robert L. Arrington
    I think the parties find it helpful if they get some guidance from the Arbitrator on what he wants briefed. It can be done in a way that does not suggest the arbitrator does not care about other issues.
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  • Wednesday, February 18, 2026 4:08 PM | Dustin Hecker
    I see two scenarios. The first is whether it is advisable in advance of the hearing on the merits to have agreement on the issues the arbitrator will be deciding. That is a no-brainer at least with respect to the claims at issue. The second is what should be argued in the post hearing briefing. We should be careful not to identify issues to be addressed in post hearing briefs that might suggest we have decided the case one way or the other at that point. But several times I have been concerned that the lawyers did not see issues I thought were important. So, I have sent counsel a list of issues I would like them to address in addition to anything else they would want to brief. The worst position to be in, it seems to me, is to have identified an important issue and not have briefing from either side about it.
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  • Wednesday, February 18, 2026 4:14 PM | Stephen Sorensen
    I believe that the parties will define the issues in their opening statements and then further discuss the issues in the respective briefs
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  • Wednesday, February 18, 2026 4:27 PM | DTS
    Not sure why the utility would be of that. I just let Claimant submit, then Respondent 14 days later, then Claimant gets a few pages to reply. Seems very straightforward. I always give them the option of oral closings to save money
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  • Wednesday, February 18, 2026 4:46 PM | John Allen Chalk, Sr.
    Listing of all issues early in the arbitration is an excellent idea but not practical in complex, multiple-issue arbitrations. It is difficult to get advocates to prepare early in the process and to fully identify all the anticipated disputed issues. Some arbitral institutions aggressively train new arbitrators to spend the least amount of billable time during the early stages of the arbitration. This indirectly influences the parties and advocates to spend little time identifying all the disputed issues early.
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  • Wednesday, February 18, 2026 5:01 PM | Richard H. Kosinski
    The simplicity of arbitration exists as an alternative to the complexity of resolving disputes in court proceedings. Requiring an advance issues list unnecessarily adds complexity to what should be a simple process.
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  • Wednesday, February 18, 2026 8:14 PM | Rebecca Bowman
    It seems as though we are reading two different questions.

    1. Asking counsel to identify the issues. That's what the opening position statements are for. I have occasionally asked each party to lay out a spreadsheet of issues and exchange them prior to the hearing. The parties often discover that they have already resolved some things or that one party didn't know some of the other parties' concerns and readily addressed them, shrinking the arbitration.

    However, some people seem to be reading 2. Should the arbitrator tell the parties what to brief. In my opinion, that's an "absolutely not." As someone mentioned with regard to post-hearing briefs, that can appear to signal a pre-determined outcome. Furthermore, it the task of the parties to put on the case, not our task as arbitrators to identify additional issues they could also dispute. If one party (or both) seems to be missing the point, I can ask questions in the hearing. But if the missing-point party doesn't pick up on my question, I have to make my decision based on what has been presented to me.
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  • Wednesday, February 18, 2026 8:42 PM | Tim Austin
    I'm okay with the submission of briefs but is dependent upon the complexity of the case. Also, agree that the point of the brief is brevity and direct.
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  • Thursday, February 19, 2026 2:42 AM | Richard Happ
    I find this highly problematic. It would force Claimant to identify issues it considers irrelevant, but which Respondent might consider relevant (or has not yet even thought of) and adress and discuss them. That gives Respondent an unnecessary headstart and insight in Claimants legal assessment
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  • Thursday, February 19, 2026 1:11 PM | Bill Tucker
    I think it's an unnecessary additional step. The arbitrator should know what all the issues are and should be prepared to address them in the Award.
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  • Thursday, February 19, 2026 9:43 PM | Peter Silverman
    I believe in the Golden Rule--treating counsel as I would want to be treated. After a hearing, I want the arbitrator to tell the parties what she thinks are the key issues she needs to decide and I'd like her to share her impressions from the hearing. That way, I have the best chance to write a brief to advance my client's case.
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  • Friday, February 20, 2026 3:40 PM | Madeline Snider
    Issue lists can be useful in getting counsel to focus and, importantly, ensure that they are actually meeting one another’s arguments with counterarguments on the same points. It reduces the risk that the parties’ cases are not properly in conversation with one another, which can make it difficult for the tribunal to write the award.

    This works better as a case management tool employed after the parties and their counsel better understand their case and that of the opposing party (some time before the hearing or before the post-hearing submissions) than at the outset, when the issues may not yet be fully defined. In most cases it probably isn’t a good substitute for a second round of briefs, as core part of presenting one’s case is responding to the arguments of the opposing party.

    That said, in very simple or low-value cases where the parties prefer to submit only one round of briefs, it may be useful to have the parties identify the issues at the outset to ensure that both sides speak to the same points.
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