Introduction

Arbitral institutions are competing on efficiency — the ICC’s revised Rules took effect June 1, 2026 with a highly expedited track and codified early determination, and the AAA amended its Commercial Rules in 2022 to make arbitrators weigh the cost of a dispositive motion before allowing one. None of that reaches the decisions that actually drive cost. Those belong to counsel, and most of them are made in the first sixty days. What follows is my top ten list of what counsel can do to make arbitration truly efficient and cost effective for their clients.

The List

1. Draft the clause so it can run itself. If you are drafting the arbitration clause as transactional counsel, or one in a post-dispute agreement to arbitrate, sweat the details – but don’t handcuff the arbitrator and litigation counsel down the road. Name the forum and the rules, and set the seat, governing law, selection method, and form of award. Be careful about discovery – don’t incorporate statutory or procedural rules wholesale, but it might be wise to leave the shape of discovery to the preliminary hearing once the contours of the dispute are known. Watch the recurring defects: conditions precedent so strict a party forfeits the right to arbitrate by missing a step, and a three-arbitrator panel in a contract whose disputes will cost less than the panel.
2. Treat the preliminary hearing as the most important hour in the case. It is not a scheduling call. It is where the schedule, discovery scope, form of testimony, expert treatment, motion protocol and award type are either resolved or scheduled to be resolved. Meet and confer in earnest beforehand and arrive with positions on these critical issues in addition to a calendar. The difference between a conference where counsel have actually spoken and one where they have not is not subtle.
3. Build a schedule that will hold — and book the extra hearing days now. The goal is not the earliest dates; it is dates that survive. Finding additional hearing days later means finding them across three calendars plus the arbitrator’s (or a panel’s, even more complicated), which is how an arbitration starts looking more like litigation. Ask the arbitrator to require good cause for any modification, and put status calls on the calendar while slippage is still correctable.
4. Help the arbitrator get disclosure right. Failure to disclose a prior or ongoing relationship is the most common route to vacatur under the Federal Arbitration Act, and an arbitrator can only run conflicts against names actually supplied. Give the full list — counsel, parties and their ownership, witnesses, experts — and supplement as the case develops. States such as California have specific requirements regarding disclosure, including permitting peremptory disqualification within fifteen days of disclosures, and solicitation-disclosure requirements in consumer matters. The party best served by clean disclosure is the one that prevails.
5. Right-size discovery to the case, not to the rules you are used to. Parties trade the jury and meaningful appellate review for speed and cost. Counsel who then run federal-court discovery have given up the benefits and kept the costs. Focus on what you actually have to present and prove to a sophisticated arbitrator, not a lay jury. Address third-party discovery early, because an arbitrator’s subpoena power is more constrained than that of a court, and disputes over third-party discovery need to be resolved early.
6. Decide the form of testimony before you pick your witnesses and experts. Whether written statements will stand in for direct testimony, and whether opposing experts will be heard concurrently, changes how you prepare for the hearing and can change which expert you retain. Deferring these questions to the eve of the hearing forfeits the savings entirely.
7. Handle procedural disputes with a letter and a phone call. The most efficient protocol in wide use is a three-page letter followed by a call within a day or two. An informal discovery conference with the arbitrator frequently resolves the dispute by the act of being scheduled — parties who have to explain a disagreement out loud tend to settle it first.
8. Reserve dispositive motions for pure questions of law. Provider rules set a deliberately high bar: permission first, plus a showing the motion is likely to succeed and to narrow the case. The reason is Section 10 of the FAA, which permits vacatur where an arbitrator refused to hear evidence “pertinent and material to the controversy.” A dispositive ruling that passes over a genuine factual dispute is the award most exposed on review. Move only where there are no disputed facts at all — not merely none that are material — or make the same argument at the hearing, on a developed record, at a fraction of the risk.
9. Try the case to the arbitrator, not to a jury. Having a third witness read a contract section into the record is a habit imported from jury trials, and it is among the largest recoverable time losses in a hearing. Say you are turning to Section 3 and move on. Enter into as many stipulations as the parties may agree to. Use written direct for minor and records witnesses — but not for a party, and not for a witness who has to teach something like a damages model, and always take some live direct so the witness is settled before cross.
10. Carve out the issue that decides the case, and choose the award form before you need it. A great many disputes turn on one question — whether a contract was formed, whether particular conduct was a breach. Resolving it first gives both sides a shared reference point, and the interim ruling often does more to resolve the matter than the rest of the hearing would have. Mind the difference between an interim award and a partial final award, because a final award starts the clock on confirmation and vacatur. On the award itself: decide at the preliminary hearing whether you want standard, reasoned, or findings and conclusions, note that provider rules impose deadlines for requesting a reasoned award, and remember that if there is any prospect of seeking vacatur, a reasoned award is the one to have.

The Common Thread

Every item on this list is a decision counsel can make, most of them early, and nearly all of them are forfeited by default rather than lost on the merits. Arbitration’s advantage is that it is the parties’ process — almost every procedural feature is negotiable at a point when negotiating it still matters. Counsel who treat the rules as a fixed track have paid for an option they never exercise.

John Libby is an arbitrator, mediator, and settlement counsel with LibbyADR LLC. This post discusses arbitration practice for general informational purposes and is not legal advice.