Originally from World Arbitration And Mediation Review (WAMR)

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SUMMARY: IF YOU (RE)BUILD IT, THEY

WILL COME: CONTRACTS TO REMAKE
THE RULES OF LITIGATION IN
ARBITRATION’S IMAGE
By Henry S. Noyes

Henry S. Noyes suggests taking the benefits of arbitration and working
them into a traditional litigation framework. Litigants would obtain the
speed of arbitration without the high upfront costs of arbitration by
arbitrating disputes in the public court system.

Arbitration leads to speedy resolution because parties can craft the
procedures to meet their needs.1 Additionally, because awards do not have
to be published, it provides adequate confidentiality for parties wishing to
avoid publicity. There are risks inherent in arbitration that can outweigh its
potential benefits. First, each party to an arbitration proceeding must pay
attorney fees, arbitrator fees, and fees to the institution that administers the
arbitration.2 These fees could cause plaintiffs to forego pursuing their
claims altogether.3 Second, arbitration can be preceded by litigation over
whether the arbitration agreement is valid, which impedes judicial
economy.4 If the arbitration agreement is held to be invalid, the parties must
resort to litigation. Third, arbitration limits the grounds for judicial review,
which is an additional risk that parties must incur.

Noyes suggests applying arbitration principles to traditional litigation to
form a so-called modified litigation.5 Like arbitration, prior to a dispute,
parties would contract to settle any disputes through modified litigation.6
The agreement would stipulate which procedures the parties wish to use, to