Businessman PitfallOne of the benefits of arbitration is the ability to select triers of fact with specialized knowledge or experience in a specific industry. Another benefit is the freedom of the parties to select a procedure that is sensible for their specific dispute. But the intersection of specialized, often highly technical, or esoteric subject matter with procedural freedom can result in confusion about the ground rules for the use of experts in the arbitration. A detailed, carefully negotiated expert discovery agreement is therefore essential to good arbitration practice. And one subject for which this is especially true is the treatment of drafts by, and communications with, expert witnesses.

A carefully drafted arbitration clause may specify the substantive law that will apply to a dispute and certain procedural rules that will govern the arbitration—often by specifying arbitration under the auspices of an institutional arbitration provider such as the American Arbitration Association (AAA) or JAMS. But while selecting law and forum is usually enough when it comes to litigation, it is not for arbitration. The federal courts, or the courts of a selected state, have detailed rules and a well-developed body of binding case law to fill in procedural gaps or resolve ambiguities. Arbitration has neither. This lack of pre-existing default rules for expert discovery means that the parties have not only the freedom, but also the obligation, to establish their own rules as they proceed.

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