Originally from Dispute Resolution Journal

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I. INTRODUCTION

Recently, with the prevalence of mandatory arbitration clauses in commercial contracts, and the growing trend to swap costly courtroom litigation for efficient and cheaper alternatives like arbitration, trial consulting firms have branched out to offer specialized arbitration services. Daniel Wolfe, president of the American Society of Trial Consultants (ASTC) explains this new trend in consulting: “fewer and fewer cases are actually going to trial and so, in a manner to adapt to that, trial consultants have had to get creative to ply their trade in other settings and other avenues in order to essentially keep plying their trade.”  Their creative attempts have been successful. For example, after only two years of offering ADR negotiation services, DOAR Litigation Consulting, a leading litigation consulting firm, reported that alternative dispute resolution negotiations accounted for over 20 percent of their business. 

Consequently, as demand for these consulting services increases, the necessity to regulate the practice intensifies. But, despite the steady growth in the demand for arbitration consulting services, the practice remains an unregulated field within the trial consulting industry. The American Society of Trial Consultants, the only nationally recognized organization with authority to police the profession, has yet to establish an enforceable set of rules to regulate arbitration consulting services. Because arbitration consulting may have some determinative effect on arbitration outcomes, the ASTC must enact a code of conduct to regulate the use of these services. Only with oversight and enforcement mechanisms, can arbitration consulting hope to garner the same widespread use and legitimacy as litigation consulting services.

Part II of this paper introduces the trial consulting industry, and details its only supervisory body, the American Society of Trial Consulting. Part III identifies the areas of arbitration consulting that need to be regulated, and then argues for using parallel ASTC code provisions to enact a practice guide for arbitration consulting.