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Whether a dispute will be litigated or arbitrated is usually determined long before the dispute even arises—at the time a contract is negotiated, drafted, and executed. Companies and practitioners alike routinely include an arbitration provision in business contracts as an almost knee-jerk reaction during the drafting process. Arbitration is often thought of as faster, cheaper, and less risky. But is this accurate? And is this “one size fits all” attitude of inserting arbitration clauses in most business contracts really the best approach to the resolution of disputes that arise out of business transactions? There are sometimes advantages to arbitration over litigation but there also can be disadvantages in arbitration. Both warrant discussion and evaluation prior to the selection of a forum.

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