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Arbitration and the Lax Rules of Evidence


I’m sure you have heard of arbitration.  Arbitration is a method of dispute resolution.  If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract.  This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution.  (If you are arbitrating your dispute, then you are not litigating your dispute in court.)

In arbitration, the rules of evidence are lax.  For example, Rules 35 and 36 of the Construction Industry Arbitration Rules promulgated by the American Arbitration Association state in relevant portion:

R-35. Evidence

(a)  The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.

(b)  The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered. The arbitrator may request offers of proof and may reject evidence deemed by the arbitrator to be cumulative, unreliable, unnecessary, or of slight value compared to the time and expense involved. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where: 1) any of the parties is absent, in default, or has waived the right to be present, or 2) the parties and the arbitrators agree otherwise.

(c)  The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.

R-36. Evidence by Affidavit and Post-Hearing Filing of Documents or Other Evidence

(a)  The arbitrator may receive and consider the evidence of witnesses by declaration or affidavit, and shall give it such weight as the arbitrator deems it entitled to after consideration of any objection made to its admission.

These rules are designed to be much more liberal and flexible than the rules of evidence that govern litigation in court.  These rules give the arbitrator tremendous discretion to weigh the value of the evidence presented and progress the arbitration forward based on his/her understanding of the evidence and issues.  Naturally, with such lax rules of evidence, it is easier to present and admit evidence in arbitration than litigation, especially since arbitration does not require you to conform to the rules of evidence.  Sometimes this is beneficial.  Sometimes it is not.  


Please contact David Adelstein at or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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