A question the associate can't answer
A commercial arbitration between a shipping company and a charterer. Three arbitrators: a retired judge, a maritime lawyer and a former shipping executive.
The associate is examining her company's operations manager when the former executive interrupts.
"Mr. Vance, forgive me — I ran a fleet for twenty years. When you say the vessel was 'off-hire,' do you mean under clause 17 or as a matter of practice? Because in my experience those diverge quite often."
The associate doesn't know the answer. Her witness does — but he's looking at her, unsure whether he's allowed to answer the tribunal directly. Her instinct, trained in court, is to object or to redirect.
Neither is right here.
A different forum with different habits
Arbitration is chosen for its flexibility, expertise and privacy. Arbitration advocacy therefore differs from courtroom advocacy in ways that matter to how a lawyer behaves in the hearing room.
Four features stand out.
The tribunal may be expert. Arbitrators are often chosen for knowledge of the industry or subject. They may understand the commercial context better than the advocates.
Procedural rules are more flexible. Evidentiary rules are often applied less strictly than in court, and procedure depends on the arbitration agreement, the institutional rules and the tribunal's directions.
Arbitrators may question witnesses directly. Tribunal questions are common and sometimes extensive. They signal what the decision-makers think matters.
And there's no jury. Theatrics designed for lay jurors tend to work poorly on professional decision-makers.
When the tribunal asks
Welcome the question. A tribunal question is the most direct indication of what the decision-makers care about. It's an opportunity, not an interruption.
Let the witness answer the tribunal. Where the procedure allows — and it commonly does — the witness should answer the arbitrator directly and fully. Prepare witnesses for this in advance: "If an arbitrator asks you something, answer them directly. You don't need to look at me."
Don't object reflexively. Objections that would be routine in court can seem obstructive in arbitration, particularly to a tribunal question. Reserve them for genuine issues of fairness or scope.
Follow up afterwards. Once the witness has answered, the advocate can clarify or develop the answer in her own questions. That's usually far more effective than interrupting.
If you're asked directly and don't know, say so. "I don't know, and I'd rather not guess. Mr. Vance can speak to how that works in practice, and we can address the contractual point in our post-hearing submission." An expert tribunal will see through a guess immediately.
Advocacy for an expert audience
Don't over-explain the industry. If the tribunal knows the field, explaining basics wastes time and can seem condescending.
Do explain what's specific to your case. The documents, the timeline, the particular decisions made — that's where the tribunal needs the advocate.
Be precise. Expert decision-makers notice imprecise terminology, mischaracterized documents and overstatements quickly.
Tone down the performance. Arguments pitched at a jury's emotions tend to land poorly. Clear, organized, evidence-based presentation lands well.
Prepare witnesses for expert questioning. A witness who has only rehearsed with the advocate may be surprised by a technical question from someone who knows the field. Preparation should include realistic tribunal questions.
The hearing sits on top of the papers
In many arbitrations, the written submissions carry much of the case. By the hearing, the tribunal has usually read the pleadings, witness statements and key documents — sometimes several times.
Don't repeat what they've read. An opening that summarizes the written case at length uses hearing time the tribunal would rather spend on what remains unclear.
Use the hearing for what paper can't do. Credibility, the real sequence of events, the answer to the question the tribunal hasn't been able to resolve from the documents.
Listen to the questions as a roadmap for the post-hearing submission. Every tribunal question identifies an issue to address in writing afterwards. Advocates who note them carefully write better closing submissions.
And don't treat any arbitrator as your advocate. Whether or not a party appointed them, arbitrators are generally expected to be independent and impartial. Addressing a party-appointed arbitrator as an ally is both inappropriate and unpersuasive to the rest of the tribunal.
Four ways it goes wrong
The courtroom transplant, who objects to tribunal questions and treats arbitration like a jury trial.
The industry lecturer, who explains basics to arbitrators who know the field.
The guesser, who answers a technical tribunal question she doesn't know rather than deferring to the witness or to later submissions.
The unprepared witness handler, whose witness hasn't been told that tribunal questions are normal and should be answered directly.
Why this isn't trained
Advocacy training is court-focused. Law schools and firms train for trials and motions; arbitration hearings are learned on the job.
Arbitration is private. Junior lawyers rarely get to observe hearings they're not staffed on.
Tribunal questioning varies widely. Some panels ask little; others ask extensively. Advocates need practice with both.
And practice rarely includes expert decision-makers. Colleagues playing arbitrators don't bring industry expertise — which is exactly the feature that changes how advocacy works.
What arbitration advocacy simulation can rehearse
A ten-minute simulation can put the advocate before a three-member tribunal that includes an industry expert who asks technical questions of witnesses and counsel — so the advocate practices welcoming questions, letting witnesses answer and pitching arguments to expert listeners. The AI agents in Foretell AI play the tribunal and witness consistently; the case, arbitration rules and procedural orders stay with the firm.
Four versions to build:
- The expert arbitrator, who asks a technical question the advocate can’t answer.
- The questioning tribunal, which interrupts examination repeatedly with its own questions.
- The nervous witness, unsure whether to answer the tribunal directly.
- The procedural chair, who asks counsel how they propose to deal with an issue in post-hearing submissions.
Design caution. Arbitration procedure depends on the arbitration agreement, the applicable institutional rules, the seat and the tribunal's procedural orders. Evidentiary practice, witness questioning and objections vary significantly. Modules must use the firm's own case materials and the applicable rules. Nothing here is legal advice.
Designing the module
Ten minutes, scored against an arbitration advocacy rubric.
Pass one — tribunal questions. Did the advocate welcome tribunal questions and allow the witness to answer directly?
Pass two — calibration. Did she avoid over-explaining the industry while explaining case-specific facts clearly and precisely?
Pass three — honesty and follow-up. Did she acknowledge what she didn't know and address it through the witness or later submissions?
Rubric on observable behavior: Were tribunal questions interrupted or objected to? Did the witness answer the tribunal directly? Was follow-up used after tribunal questions? Was industry background over-explained? Was terminology precise? Did the advocate guess at technical answers? Was a later submission offered where appropriate?
Tribunal-question handling is the measure. How an advocate responds to the arbitrator's own questions shows the tribunal whether she's helping it decide — or getting in the way.
For law firms and in-house legal teams
Commercial disputes increasingly go to arbitration. Advocates need forum-specific skills, not just adapted trial habits.
Expert tribunals reward precision. The ability to communicate clearly with specialists is a competitive advantage.
Witness preparation changes. Witnesses need to be ready for technical questions from decision-makers.
And juniors rarely get practice. Simulation gives associates hearing experience that private proceedings otherwise make hard to obtain.
For law schools, international arbitration moots and ADR courses can add realistic tribunal questioning by expert arbitrators.
Frequently asked questions
How is arbitration advocacy different from trial advocacy? Arbitrators are often experts, procedural and evidentiary rules are more flexible, tribunals frequently question witnesses directly, and there's no jury — so precision matters more and theatrics less.
Should you object when an arbitrator questions your witness? Generally only if there's a genuine issue of fairness or scope. Tribunal questions signal what the decision-makers care about and are usually best answered directly.
How should witnesses prepare for arbitration? By expecting questions from the tribunal — sometimes technical — and understanding that they should answer the arbitrator directly and fully.
What if an arbitrator asks counsel something they don't know? Say so, avoid guessing, and offer to address it through the witness or in post-hearing submissions.
The short version
The arbitrator ran a fleet for twenty years and asked a question the associate couldn't answer. Her witness could.
Welcome tribunal questions — they tell you what matters. Let your witness answer the arbitrator directly, and prepare him for that. Don't object by reflex. Don't explain the industry to people who know it. Be precise about everything specific to your case. And when you don't know, say so.
In arbitration, the best advocacy often looks like helping the tribunal get to the answer.
Foretell AI lets law firms and legal teams build arbitration simulations — including expert tribunals, direct arbitrator questioning and witness preparation like the one above — with configurable AI arbitrators and witnesses, recordings and rubric-based evaluation. If your associates first face an expert tribunal in a live hearing, we're happy to walk through how other firms have structured it.