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A recent article for the American Bar Association by Robert E. Shapiro, pointedly titled “I Hate Arbitration (Most of the Time),” observes that disputes submitted to arbitration are likelier to be tried to conclusion than are complaints filed in court. Shapiro posits that the formalities of litigation — full blown discovery, the back and forth of motion practice, and appropriately timed settlement conferences — facilitate compromises and settlements in ways that arbitration does not. Shapiro apparently believes that litigation fosters an exchange of information about the strengths and weaknesses of the parties’ positions, which is absent in arbitration. Thus, he argues that in arbitration “the very lack of an opportunity to challenge and be challenged keeps each party’s vision clouded.” The “ultimate irony” for Shapiro is “that a process supposed to make for a speedier, more cooperative resolution [may] make a fair compromise that much less likely.” My own experience confirms the phenomenon observed by Shapiro: a case filed in court is substantially likelier to settle before trial than is a dispute submitted to arbitration. However, it’s quite another thing to suggest that this phenomenon constitutes a weakness of arbitration. To my mind, it demonstrates a failure of litigation. First, I do not agree with Shapiro that the purpose of arbitration is to achieve a “more cooperative resolution” or a “fair compromise.” Unlike mediation, judicial and arbitral tribunals exist for the purpose of deciding disputes. They are our society’s alternative to “pistols at sunrise.” They should be evaluated on their respective abilities to adjudicate matters correctly, economically and promptly. While litigation and arbitration certainly may be (and have been) compare and critiqued on these factors, I disagree that it is appropriate to value litigation and arbitration based upon the percentages of court actions and arbitration disputes that are settled prior to final adjudication. Make no mistake. I strongly believe that, in most cases, parties benefit from a negotiated resolution rather than a decision imposed upon them by a judge, jury or arbitrator. However, mediated results should be pursued based on processes that are tailored to achieving a settlement efficiently and cost effectively. Litigation is not such a process. For example, even though an exchange of information between parties certainly is conducive to settlement, the open-ended discovery and motion practice offered to litigants is a cost intensive and inefficient way for parties to formulate settlement positions. Similarly, while the prospect of extended judicial delay and exorbitant trial costs may inspire parties to jump off the litigation merry-go-round and settle their dispute, these characteristics of a judicial system do not warrant praise. Courts should not be commended for encouraging settlements based on hurdles thrown in the path of trial. Shapiro is correct that arbitration, more than litigation, provides fewer detours from the filing of the claim to the evidentiary hearing. Rules provided by the American Arbitration Association and other arbitration administrators are geared toward the prompt filing of a responsive pleading, the selection of one or more arbitrators, the scheduling of limited discovery, and hearings. Rarely are there formal settlement conferences, or directives from the arbitrators that the parties, prior to the hearing, should pursue mediation. Consequently, unlike with the judicial system, arbitrating counsel cannot count on settlement resulting from an institutional resistance to trial. Instead, the mindset in arbitration is directed toward the evidentiary hearing. Thus, it is incumbent for arbitration counsel to recognize the importance of taking the initiative if he or she perceives that a negotiated settlement provides a better alternative for the client. The beauty of the process, however, is the choice given to the parties. If they desire an adjudicated outcome, they can proceed with the hearing, unencumbered by institutional roadblocks. Robert A. Harris is a partner at Zeldes, Needle & Cooper in Bridgeport.

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