Arbitration and Choice : Taking Charge of the 'New Litigation'

Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American arbitration is at a crescendo. Much of this criticism stems from the fact that arbitration under standard procedures has taken on the trappings of litigation - extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. Paradoxically, concerns about the absence of appeal on the merits in arbitration have caused some to craft provisions calling for judicial review for errors of law or fact in awards. It is time to return to fundamentals in American arbitration. Those who seek economy, efficiency and a true alternative to the courthouse must take advantage of the primary value of arbitration as an alternative to litigation - the ability to make choices. Real change must begin with the commitment of business users to thoughtful, informed consideration of discrete process choices that lay the groundwork for a particular kind of arbitration - whether they seek a highly streamlined, short and sharp process with tight time frames and firmly bounded discovery, a private version of federal court litigation or something in between. This article proposes a five-step Protocol aimed at addressing the helping business users bridge the current gap between user expectations and experience in arbitration. It offers specific guideposts for those seeking to promote greater efficiency and economy in arbitration. It also summarizes and analyzes emerging standards for expedited or streamlined hearings, greater control of discovery, alternatives to judicial review of the merits of awards