The potential benefits of arbitration as an alternative to litigation are well-known. Simpler. Faster. Cheaper. Or so conventional wisdom goes. Over the last decade, however, arbitration has become less the little brother of litigation and more its twin—even if only fraternal rather than identical. In that evolution, the perceived benefits of arbitration have become more and more elusive. What happened? In the answer to that question lies a path towards restoring arbitration to its traditional role as a true alternative to litigation, and not a mere look-alike.
Much of the blame for this “litigization” of arbitration lies in the proliferation of e-discovery or, more accurately, the propagation of electronic documents, which in turn spawned the proliferation of e-discovery. Ever since Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) and its progeny, the results obtained in litigation have become increasingly driven not necessarily by the merits of a dispute but rather by litigation over the litigation process itself: the adequacy of litigation holds (particularly when it comes to electronic documents, which by their very nature are ephemeral), spoliation motions (with electronic documents taking center stage), and the sanctions such motions can produce (if not case-dispositive, often case-determinative). It is little wonder that the obsession with e-discovery—along with its attendant delay and expense—has made the leap to arbitration, which had already started to show smaller signs of stress. Given those hairline fractures, the rather rapid onset of e-discovery may simply have found a by-then vulnerable victim.
