The author is a partner at Brobeck, Phleger & Harrison L.L.P. in San Francisco and Palo Alto, Calif. He is actively involved in both the mediation and arbitration of commercial financial disputes. This paper was originally presented at the ADR Superconference, held April 28-29 in Washington, D.C.
“It is feasible to achieve arbitration results that are consistent with the contract and applicable law if one is careful to address the key variables in advance,” says author Larry Engel. His article facilitates the process by laying out these elements and addressing significant issues that any risk-averse party to an arbitration must consider.
Few commercial parties continue to be comfortable with the capacity of our jury system to reliably satisfy their goals in resolving civil suits.l The debate is usually between litigation with jury-trial waivers vs. arbitration.2 The question becomes whether the commercial party is more likely to obtain predictable justice from the judges or from the arbitrators. (This discussion assumes that effective jury-trial waivers are both possible and feasible for the lender to enforce them in the applicable jurisdiction.)