Arbitration or litigation? Coke or Pepsi? Regular or decaf? Our choices and preferences are based in part on what we hear from others, but the more substantial factor in those choices and preferences is personal experience. Many of our clients already know that they prefer Pepsi and can’t stomach decaf—but they have no preferences when it comes to dispute resolution because they have had little or no experience with it.

 

Recently, along with another practitioner, I spoke at a lunchtime seminar at our local American Arbitration Association (AAA) office1 to about a dozen commercial and construction arbitrators. We talked about our expectations as “users” of the arbitration process and recommendations for increasing the level of satisfaction that our clients have with arbitration. As a prelude to that discussion, we also talked about whether our clients were electing to include arbitration clauses in their contracts. Even with the recent boom in alternative dispute resolution (ADR), many clients are still unfamiliar with the arbitration process. Some of these clients are first-time owners of construction projects. At the contract drafting stage, they usually are preoccupied with breathing life into their project and feel trepidation about its launch. At this point in time, they are not inclined to focus on how to resolve future disputes with their designers and contractors.