Can arbitration offer a better path to resolving a business dispute even when the parties’ contract contains no arbitration clause? In “Arbitration: A True Litigation Alternative,” CCA Fellow Roy L. De Barbieri and co-author Robert Harris examine an often-overlooked option: agreeing to arbitrate after a dispute arises, including when litigation is already underway.
Published in the July/August 2026 issue of CT Lawyer, the article explores why post-dispute arbitration remains uncommon. The authors suggest that, beyond concerns about limited appellate review or a party’s perceived advantage in court, a central obstacle is simple: counsel often never raise the possibility.
De Barbieri and Harris discuss how arbitration can address business priorities through flexible scheduling, the selection of a neutral with relevant expertise, discovery tailored to the dispute, privacy, and finality. They identify circumstances in which arbitration deserves particular consideration, including time-sensitive disputes, matters involving specialized industries, and cases where litigation costs may be disproportionate.
The article also outlines practical considerations for a post-dispute arbitration agreement, including whether to stay or dismiss pending litigation, how to allocate costs, and what discovery to permit. A sample agreement provides a starting point for counsel to adapt to the parties’ circumstances.
Reprinted with permission from the Connecticut Lawyer Magazine.
