When the Federal Arbitration Act (FAA), which provides for federal facilitation of private dispute resolution through arbitration, was enacted in 1925, its proponents argued that arbitration was desirable because it allows resolution of disputes more quickly and at less cost than court proceedings. In the more than 90 years since the FAA became law, the notion that arbitration is a more efficient and streamlined way of resolving cases has become widely accepted. Arbitration today is more prevalent than ever; between 1996 and 2002, for example, total arbitration filings reported by the American Arbitration Association, or AAA, more than doubled. Lawrence Mills and Thomas Brewer, “Nuts & Bolts, A courtroom Lawyer’s Guide to Arbitration,” 31 Litigation 42, Spring 2005, at 45.

A parallel trend in recent decades has been the increasing use of dispositive motions—particularly motions for summary judgment—in the federal courts. So commonplace has summary judgment become that the ABA Section of Litigation’s Vanishing Trial Project found in 2005 that only 1.8 percent of civil cases go to trial, and in the 12-month period ending on June 30, 2015, the average federal district judge had 626 pending civil and criminal cases but had conducted only 17 civil or criminal trials. Richard T. Seymour, “Navigating the Discovery and Evidence Roadmap in Arbitration” 5-6 (2016).

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