Originally from World Arbitration And Mediation Review (WAMR)

When I was asked to speak, I asked a number of colleagues for their views on what I should discuss. I also read articles and editorials in alternative dispute resolution (ADR) publications.

From the corporate counsel perspective, I heard over and over that the time and costs of arbitration, coupled with the use of U.S.-style trial techniques, particularly relating to discovery, have made it an unattractive option for commercial dispute resolution. They would just as soon take their chances in court.

Outside counsel practitioners believe that, despite its problems, arbitration is almost always preferable to litigation in state and national courts. They are also tired of hearing corporate counsel complain about the excesses of arbitration professionals and what is wrong with the system. They believe that part of the problem is the failure of in-house professionals to clearly articulate their expectations and rein in outside counsel, if they feel it is warranted. In short, corporate lawyers – stop griping and get involved.

The academic view is that arbitration is not living up to its potential because of a lack of creativity and client-centric focus, attributable to actions and inaction by inside counsel, external counsel, arbitrators, and arbitral forums. They say, “Don’t throw out the baby with the bath water.”