No litigant who has had to pay a lawyer would agree that access to the courts is inexpensive. Nonetheless, apart from relatively nominal filing and motion fees, the entire extensive structure of the judicial system—judges, courtrooms and courthouses, support staff, and the like—is made available to all as a taxpayer-funded public good without a substantial access charge. Not so for arbitration.
In arbitration, of course, litigants have to pay not only their lawyers but also the arbitrators deciding their case; and when private arbitration organizations are involved, they impose fees to support their administrative structure as well. Often arbitration fees fade into the background without becoming areas of contention or difficulty, particularly when parties are large and well-funded. However, occasionally the need to pay those fees—and the ramifications when one party chooses not to do so—adds a significant level of complication and provides litigants and lawyers the opportunity to take advantage of the system. And whether they do so legitimately or unscrupulously may well be in the eye of the beholder.
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