By Harshitha Ram
This is the seventh article in a 12-part series on domestic arbitration, providing a comprehensive guide through each stage of the process. In this installment, we take an in-depth look at Motions in Arbitration: Dispositive and Procedural Motion Practice. Stay tuned for Part 8: “Preparing for the Arbitration Hearing: Evidence and Witnesses” coming next month.
Arbitration is often lauded for its streamlined process and efficiency when compared to traditional litigation. However, as arbitration becomes more complex—especially in high-stakes commercial disputes—the procedural mechanisms increasingly resemble courtroom practice. One key area where this convergence is evident is in the use of motions, both dispositive and procedural.
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Understanding motions in arbitration
In litigation, motions serve as formal requests to the court to rule on specific issues before trial or even to resolve the case outright. Similarly, in arbitration, parties may submit motions to arbitrators for decisions on discrete procedural or substantive matters. Yet, because arbitration is a creature of contract, the authority of arbitrators to entertain motions—and the standards by which they rule—often vary depending on the arbitration agreement, institutional rules, and the arbitrator’s discretion. Broadly, motions in arbitration fall into two categories: procedural motions and dispositive motions. Understanding the nature, purpose, and strategic use of these motions is essential to effective advocacy in arbitration proceedings.
—————
Procedural motions: Managing the arbitration process
Procedural motions in arbitration are typically used to regulate the flow and conduct of the proceedings. One common example is a request for an extension of deadlines, often filed to accommodate scheduling conflicts, unexpected developments, or other practical challenges. Parties may also file motions to compel or limit discovery—the former to secure access to essential documents or testimony, and the latter to curb overly broad or burdensome discovery demands that could undermine arbitration’s efficiency.
In some cases, a party may seek a motion to bifurcate the proceedings, such as separating liability from damages, to streamline the process and potentially facilitate early resolution of threshold issues. Another frequent filing is a
motion for a protective order, typically aimed at safeguarding confidential information or shielding a party from discovery that is unduly invasive or harassing in nature. Counsel may also file motions to strike or exclude evidence, challenging the relevance, admissibility, or appropriateness of certain documents, expert reports, or witness testimony. Lastly, motions to amend pleadings or submissions are occasionally necessary when a party needs to clarify legal claims, add new allegations, or correct procedural deficiencies that arise during the course of arbitration.
These motions serve a critical function in shaping the path of the arbitration and preserving procedural fairness. For instance, a motion to limit discovery in a narrowly scoped commercial contract dispute may prevent unnecessary
costs and delays, aligning with arbitration’s goal of efficiency. Procedural motions are generally welcomed by arbitrators when they serve to clarify timelines, resolve disputes between counsel, or promote the orderly conduct of proceedings. That said, unlike in litigation, arbitrators typically frown upon excessive procedural wrangling. The American Arbitration Association (AAA) and JAMS rules, among others, urge arbitrators to minimize procedural skirmishes that can derail the streamlined nature of arbitration.
—————
Dispositive motions: The controversial cousin
Dispositive motions—particularly motions to dismiss and motions for summary judgment—are more controversial in arbitration practice. These motions seek to resolve part or all of the dispute without a hearing on the merits.
Motion to Dismiss: Challenges the sufficiency of a claim as a matter of law. It may allege, for instance, that the claim is barred by the statute of limitations or that the claimant lacks standing. Motion for Summary Disposition (akin to Summary Judgment): Argues that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Because arbitration is intended to be quicker and more informal than court proceedings, many arbitrators approach dispositive motions with caution. There is often no automatic right to file such motions unless the arbitration agreement or rules explicitly permit them. Even then, arbitrators may only allow them after finding that the motion has a reasonable chance of success and will meaningfully narrow the issues or resolve the case entirely.
—————
Best practices for motion practice in arbitration
• Be strategic: Filing motions in arbitration is not routine—it must be purposeful. Procedural motions should be geared toward improving efficiency, and dispositive motions should be reserved for strong legal arguments with factual clarity.
• Know the rules: Different arbitral institutions have different rules about whether, when, and how motions can be filed. Familiarity with those rules is essential to avoid missteps.
• Get the arbitrator’s buy-in: Many arbitrators require parties to seek leave before filing dispositive motions. Pre-motion letters or preliminary conferences can be used to gauge the arbitrator’s receptiveness.
• Efficiency over formalism: Keep motion briefs focused and avoid excessive procedural formalities. Arbitrators value directness and practicality over prolixity.
• Use procedural orders: Encourage arbitrators to issue procedural orders setting clear timelines for motion practice. This creates structure while preserving flexibility.
—————
Case study: A dispositive motion that turned the tide
In a breach-of-contract arbitration between a software vendor and a Fortune 500 client, the client sought over $10 million in damages, alleging defective software. The vendor filed a motion for summary disposition, supported by evidence showing the client’s IT team failed to follow contractually required implementation protocols. The contract also contained a liability cap of $500,000. After a case management conference, the arbitrator agreed to hear the motion, recognizing its potential to narrow the dispute. The arbitrator ultimately granted partial summary disposition on the liability cap, cutting the client’s potential recovery by more than 95%. The matter settled soon after, as full hearing no longer made economic sense. This case illustrates how dispositive motions, when used strategically, can sharpen the focus of arbitration rather than disrupt it.
While arbitration remains a more flexible and informal process than court litigation, the growing complexity of disputes makes motion practice—both procedural and dispositive—an important part of the arbitration toolkit. When used thoughtfully and sparingly, motions can help parties focus the issues, eliminate wasteful processes, and even bring the arbitration to a timely resolution. Still, motion practice must be approached with a keen awareness of the arbitration agreement, the rules in play, and the arbitrator’s preferences. In arbitration, procedural prudence often trumps procedural aggressiveness. Advocates who understand this balance can turn motion practice into a powerful strategic advantage.
—————
Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). She serves as the Chair of the ADR Section of the Detroit Bar Association. To learn more or connect with her, visit: www.harshitharam.com www.adracademy.us
This is the seventh article in a 12-part series on domestic arbitration, providing a comprehensive guide through each stage of the process. In this installment, we take an in-depth look at Motions in Arbitration: Dispositive and Procedural Motion Practice. Stay tuned for Part 8: “Preparing for the Arbitration Hearing: Evidence and Witnesses” coming next month.
Arbitration is often lauded for its streamlined process and efficiency when compared to traditional litigation. However, as arbitration becomes more complex—especially in high-stakes commercial disputes—the procedural mechanisms increasingly resemble courtroom practice. One key area where this convergence is evident is in the use of motions, both dispositive and procedural.
—————
Understanding motions in arbitration
In litigation, motions serve as formal requests to the court to rule on specific issues before trial or even to resolve the case outright. Similarly, in arbitration, parties may submit motions to arbitrators for decisions on discrete procedural or substantive matters. Yet, because arbitration is a creature of contract, the authority of arbitrators to entertain motions—and the standards by which they rule—often vary depending on the arbitration agreement, institutional rules, and the arbitrator’s discretion. Broadly, motions in arbitration fall into two categories: procedural motions and dispositive motions. Understanding the nature, purpose, and strategic use of these motions is essential to effective advocacy in arbitration proceedings.
—————
Procedural motions: Managing the arbitration process
Procedural motions in arbitration are typically used to regulate the flow and conduct of the proceedings. One common example is a request for an extension of deadlines, often filed to accommodate scheduling conflicts, unexpected developments, or other practical challenges. Parties may also file motions to compel or limit discovery—the former to secure access to essential documents or testimony, and the latter to curb overly broad or burdensome discovery demands that could undermine arbitration’s efficiency.
In some cases, a party may seek a motion to bifurcate the proceedings, such as separating liability from damages, to streamline the process and potentially facilitate early resolution of threshold issues. Another frequent filing is a
motion for a protective order, typically aimed at safeguarding confidential information or shielding a party from discovery that is unduly invasive or harassing in nature. Counsel may also file motions to strike or exclude evidence, challenging the relevance, admissibility, or appropriateness of certain documents, expert reports, or witness testimony. Lastly, motions to amend pleadings or submissions are occasionally necessary when a party needs to clarify legal claims, add new allegations, or correct procedural deficiencies that arise during the course of arbitration.
These motions serve a critical function in shaping the path of the arbitration and preserving procedural fairness. For instance, a motion to limit discovery in a narrowly scoped commercial contract dispute may prevent unnecessary
costs and delays, aligning with arbitration’s goal of efficiency. Procedural motions are generally welcomed by arbitrators when they serve to clarify timelines, resolve disputes between counsel, or promote the orderly conduct of proceedings. That said, unlike in litigation, arbitrators typically frown upon excessive procedural wrangling. The American Arbitration Association (AAA) and JAMS rules, among others, urge arbitrators to minimize procedural skirmishes that can derail the streamlined nature of arbitration.
—————
Dispositive motions: The controversial cousin
Dispositive motions—particularly motions to dismiss and motions for summary judgment—are more controversial in arbitration practice. These motions seek to resolve part or all of the dispute without a hearing on the merits.
Motion to Dismiss: Challenges the sufficiency of a claim as a matter of law. It may allege, for instance, that the claim is barred by the statute of limitations or that the claimant lacks standing. Motion for Summary Disposition (akin to Summary Judgment): Argues that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Because arbitration is intended to be quicker and more informal than court proceedings, many arbitrators approach dispositive motions with caution. There is often no automatic right to file such motions unless the arbitration agreement or rules explicitly permit them. Even then, arbitrators may only allow them after finding that the motion has a reasonable chance of success and will meaningfully narrow the issues or resolve the case entirely.
—————
Best practices for motion practice in arbitration
• Be strategic: Filing motions in arbitration is not routine—it must be purposeful. Procedural motions should be geared toward improving efficiency, and dispositive motions should be reserved for strong legal arguments with factual clarity.
• Know the rules: Different arbitral institutions have different rules about whether, when, and how motions can be filed. Familiarity with those rules is essential to avoid missteps.
• Get the arbitrator’s buy-in: Many arbitrators require parties to seek leave before filing dispositive motions. Pre-motion letters or preliminary conferences can be used to gauge the arbitrator’s receptiveness.
• Efficiency over formalism: Keep motion briefs focused and avoid excessive procedural formalities. Arbitrators value directness and practicality over prolixity.
• Use procedural orders: Encourage arbitrators to issue procedural orders setting clear timelines for motion practice. This creates structure while preserving flexibility.
—————
Case study: A dispositive motion that turned the tide
In a breach-of-contract arbitration between a software vendor and a Fortune 500 client, the client sought over $10 million in damages, alleging defective software. The vendor filed a motion for summary disposition, supported by evidence showing the client’s IT team failed to follow contractually required implementation protocols. The contract also contained a liability cap of $500,000. After a case management conference, the arbitrator agreed to hear the motion, recognizing its potential to narrow the dispute. The arbitrator ultimately granted partial summary disposition on the liability cap, cutting the client’s potential recovery by more than 95%. The matter settled soon after, as full hearing no longer made economic sense. This case illustrates how dispositive motions, when used strategically, can sharpen the focus of arbitration rather than disrupt it.
While arbitration remains a more flexible and informal process than court litigation, the growing complexity of disputes makes motion practice—both procedural and dispositive—an important part of the arbitration toolkit. When used thoughtfully and sparingly, motions can help parties focus the issues, eliminate wasteful processes, and even bring the arbitration to a timely resolution. Still, motion practice must be approached with a keen awareness of the arbitration agreement, the rules in play, and the arbitrator’s preferences. In arbitration, procedural prudence often trumps procedural aggressiveness. Advocates who understand this balance can turn motion practice into a powerful strategic advantage.
—————
Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). She serves as the Chair of the ADR Section of the Detroit Bar Association. To learn more or connect with her, visit: www.harshitharam.com www.adracademy.us
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