A Guide to Using Experts in Arbitration

Alternative dispute resolution is a growing business, with 90% of civil cases entering into a settlement in lieu of pursuing a trial. In light of the case backlog in the U.S. court system—and the subsequent time and cost of having cases pending—it’s not surprising that many litigants choose to resolve their disputes outside of court.

Arbitration

While there are several ways to resolve disputes outside of court, arbitration remains the most widely used form of alternative dispute resolution (ADR). In fact, between 60–90% of cases—depending on the legal area—are settled through an arbitrator rather than a judge. Given this prevalence, particularly in international arbitration, understanding the process and how expert witnesses fit into it is essential for legal professionals and parties alike.

The arbitration process is generally less formal than courtroom litigation, with more flexible rules concerning the taking of evidence, discovery, and witness testimony. These relaxed procedural requirements present a unique opportunity for expert witness services to play a pivotal role in securing favorable outcomes.

What Exactly is Arbitration?

Arbitration is a specific type of alternative dispute resolution in which a neutral third party (known as an arbitrator or arbitral tribunal) hears the arguments from both sides and renders a decision. This decision can be binding, meaning enforceable in court, or non-binding, allowing parties to proceed to trial if they disagree with the result.

Arbitration may arise from mutual agreement or through contractual obligations, such as an arbitration clause in employment, consumer, or business agreements. It is often favored over litigation as a cost- and time-saving measure, reducing the burden on both litigants and the court system. Many tribunal members are former attorneys or judges who bring specific technical expertise to the table, increasing the efficiency and relevance of the process.

Since 1983, Congress has passed several laws encouraging or mandating the use of ADR. The Alternative Dispute Resolution Act of 1998, for example, requires all federal district courts to implement ADR programs and designate judicial officers to oversee them.

The Pros and Cons of Arbitration

Arbitration offers numerous benefits. It is generally:

  • Faster and less expensive than trial
  • Less formal and more flexible
  • Confidential and private
  • Tailored to the areas of expertise of the arbitrators

However, mandatory arbitration clauses—especially in employment or consumer contracts—have drawn criticism. Such clauses can limit a party’s access to a public trial and class-action remedies. In response, the Forced Arbitration Injustice Repeal Act (FAIR Act) seeks to prohibit forced arbitration and class-action waivers in employment, consumer, antitrust, and civil rights disputes. While it has passed the House, the bill remains under Senate consideration.

Until legislative reforms like the FAIR Act are enacted, mandatory arbitration will continue to dominate many legal fields. Over 50% of non-union employees are currently bound by arbitration agreements with their employers. As a result, the ability to present a strong case before an arbitrator has become increasingly important—and may require the involvement of multiple experts.

The Role of Expert Witnesses in Arbitration

In arbitration, expert witnesses can significantly influence the outcome. Whether presenting testimony or offering behind-the-scenes guidance, their expert evidence can clarify complex issues, validate claims, and help the tribunal reach informed conclusions. Arbitration gives these professionals greater leeway to showcase their insights.

Because arbitrators are often professionals in a relevant legal or technical field, experts may not need to simplify their language as they would for a jury. The interaction between expert witnesses and arbiters can thus be more direct and in-depth, leading to more effective communication and interpretation of specialized information.

Consulting with Experts Before Arbitration

Consulting with a legal expert or technical specialist before arbitration can be just as valuable as having them testify. These consultants can help attorneys assess the areas of disagreement, identify strengths and weaknesses in the case, and anticipate counterarguments. While expert consultants are usually protected from disclosure during litigation, arbitration offers even more privacy and impartiality in these interactions.

In many cases, pre-arbitration consultations never become part of the formal record, allowing legal advisors to benefit from strategic input without exposing their tactics or preparation.

Flexible Disclosure Requirements

Disclosure obligations in arbitration are generally less burdensome than those in litigation. Under civil and criminal procedure rules, expert witnesses must produce comprehensive reports outlining:

  • The basis for their opinions
  • Evidence and data reviewed
  • Qualifications and credentials
  • Prior testimony
  • Compensation for services

These disclosure rules can be demanding in traditional court settings. But arbitration offers much more freedom, as it is not bound by strict procedural rules like Rule 26 of the Federal Rules of Civil Procedure. This allows for greater collaboration and guidance between counsel and experts without fear of over-disclosure.

Broader Evidentiary Scope in Arbitration

In litigation, Rule 703 of the Federal Rules of Evidence restricts the materials on which an expert can rely, especially if those materials would be inadmissible under other rules. Arbitration, however, is not constrained in the same way. Experts may rely on a broader range of documents, reports, data, and even oral evidence—including hearsay—when forming their opinions.

This freedom permits a more holistic examination of the complex issues at hand and enables experts to offer opinions grounded in real-world practices and assumptions, even if those wouldn’t meet courtroom admissibility standards.

Free from Daubert and Frye

In most courts, expert witness testimony must satisfy the standards established by Daubert v. Merrell Dow Pharmaceuticals, Inc. or Frye v. United States. These decisions set strict admissibility thresholds for expert opinions, especially when the testimony involves novel scientific methods or controversial techniques.

Arbitration sidesteps these limitations. Without needing to meet Daubert or Frye standards, arbitrators can hear expert evidence that may be speculative, cutting-edge, or outside traditional academic consensus—making arbitration especially beneficial in rapidly evolving fields like tech, finance, and medicine.

How Expert Witnesses Influence Arbitration Outcomes

Presenting expert evidence in arbitration offers several distinct advantages:

  • Expert–to–expert communication: Arbitrators often share subject-matter knowledge with the expert, leading to more nuanced discussions.
  • Direct engagement: Arbiters may ask questions freely, fostering dialogue that would be inappropriate in court.
  • Specialized tribunals: In international cases, arbiters may be selected specifically for their backgrounds in areas like construction, energy, or intellectual property.

This environment amplifies the value of retaining the right expert witness—someone not just knowledgeable, but able to clearly convey complex data to other professionals and tribunal members.

Conclusion: Expert Witnesses Are Essential in Arbitration

In today’s legal landscape, arbitration is not a mere alternative—it is often the default setting for resolving high-stakes disputes. Whether in domestic or international arbitration, involving an expert early and strategically can mean the difference between a successful and unsuccessful outcome.

From pre-arbitration analysis to formal testimony, expert witnesses bring credibility, clarity, and authority. Their ability to navigate less formal procedures, leverage broad evidence, and communicate with experienced arbiters positions them as essential figures in this evolving form of dispute resolution.

As arbitration awards continue to shape industries and influence business practices globally, parties must embrace the strategic use of experts to maximize their chances of success.

About the author

Anjelica Cappellino, J.D.

Anjelica Cappellino, J.D.

Anjelica Cappellino, Esq., a New York Law School alumna and psychology graduate from St. John’s University, is an accomplished attorney at Meringolo & Associates, P.C. She specializes in federal criminal defense and civil litigation, with significant experience in high-profile cases across New York’s Southern and Eastern Districts. Her notable work includes involvement in complex cases such as United States v. Joseph Merlino, related to racketeering, and U.S. v. Jimmy Cournoyer, concerning drug trafficking and criminal enterprise.

Ms. Cappellino has effectively represented clients in sentencing preparations, often achieving reduced sentences. She has also actively participated in federal civil litigation, showcasing her diverse legal skill set. Her co-authored article in the Albany Law Review on the Federal Sentencing Guidelines underscores her deep understanding of federal sentencing and its legal nuances. Cappellino's expertise in both trial and litigation marks her as a proficient attorney in federal criminal and civil law.

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