The last-place Golden State Warriors were having a rough year on the basketball court even before the coronavirus pandemic shuttered the NBA during their shiny new San Francisco stadium’s debut season. Now, they’re having a rough year in the Court of Appeal, too. But the team’s $50 million loss in the First District last month includes a valuable tip for lawyers who draft contracts with arbitration clauses.
The conventional wisdom is that contracts include arbitration clauses because arbitration adds a level predictability and cost-control to litigation that the court system doesn’t necessarily offer. But in the last decade or so, as arbitration has become more and more common, that conventional wisdom has come into question. Some arbitrators, it turns out, are not nearly as predictable as litigants hope. Arbitrators’ time can also be very costly, too. Their decisions can run the gamut from the best the traditional judicial system has to offer to runaway verdicts with illogical rulings no court would ever issue.
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