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by Andrew Flake

I will occasionally hear, including from some very seasoned litigators and trial lawyers, that arbitration is “just like” litigation. Is that really true? I suppose, In the sense that they are both proceedings that call upon a neutral decisionmaker to resolve disputed facts, managing procedural and evidentiary conflicts and applying legal principles, yes. From the same high level of generality, however, we could also say that Olympic downhill skiing is “just like” ice hockey–they are both sports, played in cold weather on frozen water, with a winner and a loser.

Somehow, that doesn’t quite ring true. There are indeed fundamental differences, and arbitration, when managed well, should have a flow, cadence, and character all its own. Let’s take a few differences between the two resolution processes that we might not as frequently consider.

  • Party and counsel choice. The ability to agree upon virtually all aspects of the dispute, from arbitrator selection to case timing to choice of law and hearing venue.
  • Tailored document and discovery management. Bespoke discovery procedures, fitted to the case, with more flexibility in pace and timing.
  • Less formality in motion practice. Most often in the commercial context, counsel can raise issues by concise email to the arbitrator, especially prior to final hearing
  • Control over schedule. Far more so than most courts, whose dockets and other institutional constraints provide less flexibility, choice, the arbitrator can ensure the schedule that works best for the needs of the case, counsel and witnesses.
  • Focused fact-finder and neutral attention. Here again, the arbitrator is able to respond immediately to issues as they arise, and to devote focused attention to the issue at hand. That in turn means less of the motion or issue backlog that sometimes besets cases on a busy, general matter judicial docket.

Are there exceptions, instances when an arbitration does not capture all of its intended benefits, as compared with full-blown litigation?

Of course, and sometimes it occurs when one set of values, like party autonomy and choice, are in tension with others, like cost-effectiveness and efficiency. The parties may agree to take depositions that, without such consent, the arbitrator might otherwise encourage them to reconsider. Or an arbitration clause may proscribes use of the Federal Rules of Civil Procedure or even sets out – as we actually see from time to time – the number of interrogatories and requests for production the parties can exchange. Even in those cases, considering the principle of party autonomy, I will encourage the parties to consider agreeing on a process more efficient and better-tailored to their individual dispute.

In general, though, with the features of arbitration I’ve reviewed working together, I find the decision-process is one that works more quickly, with less net cost, and with which the parties and their counsel, especially in commercial cases, are far more satisfied. As far as my personal preference — given the choice, I’d rather get fitted for ski boots than for hockey pads…

If you’ve had a recent experience that drew out the contrast between arbitration and litigation in some way, let me know — I’d love to hear from you, and to consider some of these in a future post.