Is it true, as the old saying goes "A man who represents himself has a fool for a client — and a fool for a lawyer?" The answer probably turns on the answer to two other questions: How much is at stake, measured by how much you can win, how much you can lose, and how much the lawyer will cost? and Can you afford a lawyer?
Arbitration, court annexed and private, is a thoroughly 'legalized' process. If more is at stake than a lawyer will cost, and you can afford a lawyer, then hiring a lawyer to represent you is a wise choice. Using a lawyer avoids the steep learning curve about the process itself, and a good lawyer will be able to build a team effort where the client provides the strengths on the subject matter of the dispute, while the lawyer carries the ball on the process. Lawyers with 'industry competence' regarding the dispute at hand often know as much about disputes of the type in question as the party, who may be having a first experience with the particular problem.
An intelligent individual, with a substantial amount of effort (usually disproportionate to the benefits), can often manage a mediocre presentation of his or her own case. But, there are huge drawbacks. There is a substantial time investment to even a basic understanding of the process, an investment likely and hopefully not to be re-used. Experienced advocates have internalized techniques of presentation of cases that cannot be learned from studying rules or books. Persons representing themselves often are too close to the dispute and thus unable to judge what elements of their presentation need to be emphasized and what need to be de-emphasized. Or which are weak and which are strong.
What must be proved to win in arbitration is not altered by whether or not a party has a lawyer, and no strategic advantage is gained - such as lower standards of proof or standards for admissibility of evidence - by proceeding without a lawyer.
Admitting that the author of this page has the blinders of thirty years of practice as a lawyer, the answer to the question is: Having a lawyer present your case in arbitration is almost always the best investment.
MUST YOU HAVE A LAWYER IN YOUR ARBITRATION?
Having made clear that having a lawyer is a great advantage - the corollary being that not having a lawyer in any but the smallest arbitrations is a great disadvantage and a poor business choice, it is clear that individuals may always represent themselves without a lawyer. "Themselves' is narrowly construed - a person typically may not represent their spouses or children or other co-litigants in either court annexed or private arbitration.
In court annexed arbitration in Oregon, corporations, partnerships, LLCs, and trustees - any person or entity that is not an individual human being - must
be represented by lawyers admitted in Oregon. The same is likely true in arbitrations governed by the Federal Arbitration Act
but conducted within the State of Oregon (which includes most arbitrations involving business disputes).
In contrast, in private arbitration under the Oregon Uniform Arbitration Act
, a party may be represented by a lawyer admitted in any state, or any other person. ORS 36.670 clearly provides, as to private arbitration only:
Representation by a lawyer; representation of legal or commercial entities.
* * * A corporation, business trust, partnership, limited liability company, association, joint venture or other legal or commercial entity may be represented . . . by an officer of the entity, or by an employee or other agent authorized by the entity to represent the entity in the proceeding.
On the other hand, if a lawyer is required to obtain court supervision of the arbitration, or enforcement of the award in court, then an Oregon admitted lawyer will be required.
Are these distinctions fair? They are the rules.