Arbitration was once considered to be the go-to procedure for those who wanted to reduce the length and cost of litigation, streamline the resolution of disputes, and keep those disputes confidential. It is safe to say that the shine has rubbed off of the arbitration process. By many accounts, arbitration is just as expensive and time-consuming—and in some cases, more expensive and time-consuming—as traditional court litigation. And the benefits of confidentiality seem to have been outweighed by those costs. It is therefore not surprising that arbitration has come under increasing scrutiny, with many challenging the merits of submitting commercial disputes to private arbitrators for resolution.

Critics, however, have recommended that parties consider modifying the terms of arbitration clauses rather than abandoning them altogether. This middle-of-the-road position may have merit as a general proposition without regard to the legal and factual issues in dispute. As such, modifying an arbitration clause is an option, but so is eliminating the arbitration clause altogether.

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