This article is based on a panel discussion titled “Cost, Speed, Effectiveness and Enforceability” held on March 22, 2021, sponsored by The Chartered Institute of Arbitrators. The Panel was moderated by Dr. Katherine Simpson, and the panelists were Judge Shira A. Scheindlin (Ret.), Deborah Hylton and Carmen Martinez-Mendoza.
Arbitration is intended to be faster and less expensive than litigation in court, and many counsel and clients agree to arbitration clauses believing in that premise. Unfortunately, that is not always the case. Why is arbitration sometimes slower and more costly than it should be? We believe the answer lies, in large part, in counsels’ insistence on mimicking their courtroom litigation experience, despite the fact that arbitration proceedings are intended to be different. Arbitral rules differ greatly from federal and state rules of civil procedure, and offer flexibility for the parties and counsel, with the help of the arbitrator, to design a process that suits each proceeding. Arbitral proceedings should reflect the fact that they are not subject to the rules and procedures that govern the formality of court proceedings.