This article explores how the values inherent to arbitration as an alternative dispute resolution process align (or do not align) with the underlying values of the discovery process. First, it reviews the nature of discovery and arbitrations while setting forth the ultimate goals of both processes. Next, it explains how discovery arises in arbitration by way of contract, institutional control, and an arbitrator’s contracted or inherent ability to compel production of materials, and then examines the actual practice of discovery in arbitration. Finally, by way of these preliminary discussions, it addresses both the tensions and aligned goals of arbitration and discovery processes and ultimately whether discovery in arbitration makes arbitration more attractive to parties seeking to resolve a dispute in good faith.
A. The Goals and Purposes of Discovery
Discovery is a significant and often troublesome facet of adjudication in common law jurisdictions. In the United States, discovery is, in fact, a hallmark of our legal system. Indeed, twelve of the eighty-six Federal Rules of Civil Procedure deal with discovery. This proportion is not entirely surprising given the privileged place that discovery is afforded in litigation. Not only is discovery ripe for “abuses, intrusions, delays, and costs,” but it is also frequently the longest lasting and most expensive part of a case, particularly if the case never makes its way to trial.