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Arbitration is a commonly used alternative dispute resolution process where parties involved in a legal dispute contract for a private and more expedient approach to resolve their issues.
One critical aspect of arbitration which is sometimes overlooked is the decision to create a transcript of the proceedings.
While transcripts provide clarity and an accurate record of the hearing, they also come with advantages and disadvantages.
Pros of making a transcript:
Documentation & accuracy
One of the primary benefits of creating a transcript is the ability to document the entire arbitration hearing accurately.
This can be invaluable for the parties, arbitrators and any post-award proceedings.
A transcript ensures that there is a clear and indisputable record of what transpired during the proceedings.
While many may not think about it during the pre-hearing phase, this can be particularly helpful if questions arise later about the scope of the arbitration, the evidence presented or the content of the award.
Review and analysis
Real-time transcripts can be a valuable resource for both parties and their legal counsel.
They provide an opportunity to review and analyze witness testimonies, evidence and arguments made during the arbitration.
This can aid in formulating strategies during the hearing, for post-award proceedings, or any potential future disputes between the parties.
Enhanced objectivity
Transcripts offer an unbiased account of the proceedings. In situations where there are multiple arbitrators, each with their perspectives and recollections of the testimony, having a transcript minimizes the risk of misunderstandings or misinterpretations.
It provides a common reference point for all involved parties, fostering a more objective assessment of the case.
Effective cross-examination and legal arguments
Having a real-time transcript allows parties to cross-examine witnesses and make legal arguments more effectively.
It provides a verbatim account of what was said, making it easier to identify inconsistencies or contradictions in witness testimonies.
Attorneys can also use the transcript to pinpoint specific points for clarification or challenge the accuracy of statements.
Clarity and understanding
Transcripts can help ensure that all parties have a clear understanding of what transpired during the hearing.
This can be especially helpful when complex legal or technical issues are being discussed.
It can also be used to clarify any misunderstandings that may arise during the arbitration process.
Fostering accountability
The presence of a transcript encourages all parties involved to maintain professionalism and accuracy during the arbitration process.
Knowing that their words are being documented verbatim can deter witnesses or attorneys from making inaccurate or misleading statements.
Cons of making a transcript:
Cost
One of the most significant drawbacks of creating a transcript is the associated cost.
Transcription services can be expensive, particularly for lengthy arbitration hearings.
Parties will need to allocate resources to cover these expenses.
Time-consuming
Transcribing an entire arbitration hearing can be time-consuming.
It may result in delays in receiving the final award, which can be frustrating for parties looking for a swift resolution to their dispute.
Limited privacy
Arbitration is often chosen for privacy reasons.
Creating a transcript means that the details of the arbitration hearing could become public, potentially compromising the privacy of the parties and sensitive information.
Potential for misinterpretation
Transcripts are not always perfect representations of spoken words.
There is a risk of misinterpretation or misunderstanding, especially when dealing with technical terms or accents.
This can lead to disputes over the accuracy of the transcript itself.
The decision to create a transcript in an arbitration hearing should be carefully considered, weighing the pros and cons.
Arbitration proceedings can be intricate, with various witnesses providing testimony, legal arguments being made and evidence being presented.
Creating a transcript of arbitration proceedings, especially in cases of lengthy hearings or when multiple arbitrators are involved, is a prudent practice that can significantly enhance the fairness, accuracy and overall effectiveness of the arbitration process.
As such, it should be a carefully considered aspect of the arbitration process.
Jennifer Grippa is an arbitrator and mediator with Miles Mediation & Arbitration.