Originally from Dispute Resolution Journal

As the use of arbitration to resolve commercial disputes has grown, some people complain that the process increasingly resembles litigation. Is this a common perception, and if so, what can be done about it? Gerald Phillips surveyed a group of experienced commercial arbitrators to see what they think about this provocative issue. Phillips summarizes the results and shares many of the arbitrators’ comments and suggestions.

It is often said that commercial arbitration is becoming protracted and costly and that it simulates court litigation. Some believe it is no longer an efficient process for resolving disputes. Indeed, some attorneys question why they should recommend arbitration when its benefits—an expedient and less expensive means of resolving disputes—are no longer attainable? Are these benefits being undermined by “creeping legalism,”1 “judicialization,” or “incremental formalism?” The author conducted a survey of leading arbitrators to ascertain their views on this provocative question. Unfortunately, many respondents seem to believe that arbitration is becoming more like litigation to one degree or another. However, most believed that arbitrators have the inherent power to keep arbitration on track and reverse the trend. They provided ideas for handling different aspects of the process and shared information about how they conduct arbitration proceedings.

The criticism that arbitration is losing its allure because it mimics litigation is due largely to the increasing role lawyers play in the process. Because arbitration is a consensual process crafted by the parties, generally through their attorneys, they are in the driver’s seat when it comes to the process that they get. If they seek continuances, file multiple motions, and seek extensive discovery, then the process will seem like a court proceeding. Arbitrators, whose role it is to manage the process, can encourage attorneys to curb their enthusiasm for litigation procedures, emphasize the need for efficiency, and issue rulings that will expedite the process while maintaining fairness. This is essential if arbitration is to remain a viable forum. However, in addition, attorneys need sound training in arbitration advocacy.