With courts backed up in their civil dockets, due to the year-long pandemic-related delays, parties (and counsel) may wish to consider resolving their dispute in an arbitral forum rather than in court. In order to make that decision, it might be helpful to explore the pros and cons of each. As a retired federal judge with a total of 27 years of judicial experience, and now an arbitrator for the past five years, I have had a close-up view of both processes. I hope my insider views will be useful to lawyers and clients alike in choosing the appropriate forum in which to resolve their disputes.
I begin on the positive note of cataloging what I view as the advantages of each. The first advantage of arbitration is the ability of parties to design their own process. There are many issues the parties can decide—assuming they can agree. These might include whether to have a single arbitrator or a panel of three arbitrators; whether there should be an opportunity to appeal to an arbitration appellate panel—now being offered by most of the major providers; how much discovery should be allowed (often very limited) and whether one member of the panel can be designated to decide all discovery disputes. They can also determine the form of an award. Do they need a lengthy and thorough reasoned award, a summary reasoned award or just an up or down judgment?