Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 11

DISCOVERY IN ARBITRATION: HOW MUCH IS ENOUGH?

Alfred G. Feliu

I. Introduction

The use of discovery in arbitration may feel a bit like wearing a well-tailored business suit at the beach—the suit fits, but you are uncomfortable nonetheless. Some might argue that the very concept of discovery in arbitration is an oxymoron, since discovery—that costly, time-consuming pre-trial search for truth—is often inconsistent with arbitration’s well-established goals of resolving disputes expeditiously and inexpensively. 

It is no surprise that few well-clad litigators are comfortable on the beach of arbitration. The increased use of arbitration to resolve employment discrimination claims, spurred on by the U.S. Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), and progeny, has brought to the forefront the tension between a litigator’s expectation of full discovery and arbitration’s twin goals of providing for a speedy, cost-effective resolution of disputes. No detailed, formal rules have been established to govern discovery in the arbitration context. As expressly stated in Rule 9 of the AAA’s Employment Arbitration Rules, the arbitrator has the authority to order the discovery he or she “considers necessary to a full and fair exploration of the issues in dispute consistent with the expedited nature of arbitration.”

As an arbitrator serving on various AAA’s arbitration panels, I must answer in each case the question of how best to balance the parties’ need—and right depending on the nature of the case—to discover information and documents “necessary to a full and fair exploration of the issues in dispute,” against the dual aims of expedition and cost-effectiveness in arbitration.