A CCA Blog
The CCA Arbitration Aardvark* has noticed quite a bit of discussion on the cost of business dispute resolution and whether arbitration is speedier and less costly than litigation. It certainly can be, and often is. It has been reported that business arbitrations take on average 7.3 months from start to resolution while the U.S. District Court cases take an average of 23.4 months – and that’s even before appeals. Generally, the longer a case takes the more expensive it becomes.
The parties, in negotiating their arbitration agreement, can intentionally control costs. They can agree to make the process speedier and more cost-efficient. They can determine (and limit) the nature and scope of discovery, including depositions; require certain information to be provided automatically; provide for use of witness statements and expedited hearing procedures; and limit briefing on routine motions. They can also agree to a single arbitrator rather than a panel of three arbitrators, which will substantially reduce costs – and not impact the quality if they pick the right arbitrator
In fact, selection of the arbitrator is an often-overlooked cost control and quality opportunity. Too often, parties tend to focus on credentials and do not give enough consideration to selecting a trained and experienced arbitrator. (The Aardvark is partial to CCA Fellows who are peer-vetted for their arbitration expertise). Experienced arbitrators know the process and can focus on the merits. They know how to keep a case moving forward toward substance rather getting lost in procedure. They can quickly get a discovery dispute satisfactorily resolved, know when a dispositive motion will advance the ball, will push to get case to hearing quickly, and will offer the parties flexible approaches to getting evidence heard efficiently. They may have subject matter expertise that will move the arbitration process more efficiently. Finally, they take the parties’ preferences into account and strive for a fair and time and cost-efficient process.
Parties who agree to arbitration are typically seeking an alternate dispute process that is speedy and less costly. Proper arbitrator selection is key part of your tool kit to achieve that goal.
*We are using the Aardvark moniker to denote our CCA Blog. The Aardvark will provide content from time to time about cases, developments and issues associated with the practice of Arbitration. We hope you will find the blog entries interesting and useful. We encourage you to watch for the Aardvark and its arbitration content that we hope you will enjoy.