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Badger: To arbitrate or litigate, that is the question

Steven Badger
January 2, 2013
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In my world of dispute resolution, one of the most basic questions is whether a particular business dispute should be resolved in arbitration or in a court of law. Like many of the questions I am frequently asked by clients, there is no simple answer that fits all occasions and situations.

badger Badger

This first installment of a two-part column outlines the principal considerations in determining what disputes are best suited to arbitration. The second part, coming in the Jan. 16 issue of Indiana Lawyer, applies these general principles to provide concrete guidance in the use of arbitration to avoid consumer class actions and in other “bet-the-company” commercial disputes.

The pros and cons of arbitration

Arbitration is sometimes touted as a potent remedy for the expense, delay and inherent uncertainty of litigation. Congress passed the Federal Arbitration Act in 1925 to facilitate arbitration as an alternative to litigation and to overcome judicial resistance to enforcing private agreements to arbitrate disputes. The Federal Arbitration Act reflects a national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts.

Arbitration, while useful, falls well short of being a cure-all. Arbitrators wield broad authority and discretion that is virtually unreviewable by a court of law. Matters such as the scope of discovery, amendment of claims and pre-hearing motion practice lie within the virtually limitless discretion of arbitrators. Furthermore, while parties to arbitration agreements may expressly confine the authority and discretion of arbitrators in arbitration agreements, it is virtually impossible to anticipate all issues or fully counter arbitrators’ wide discretion in both procedural and substantive matters.

The primary factors that should be considered in determining whether to favor arbitration are identified below. Each consideration may weigh for or against the use of arbitration in different situations.

Privacy. Arbitration is a strictly private process. Written submissions and proceedings in arbitration are closed to the public. Litigation in court is quite the opposite. All filings and proceedings in court are presumptively open to the public. Although protective orders are routine in commercial litigation, courts generally limit their protections to the use of information in discovery and will only rarely, and for the most compelling reasons, seal filings and proceedings from public view.

The privacy of arbitration is often advantageous, but can put an aggrieved claimant at a disadvantage. Negative publicity and unwanted attention of competitors and customers to grievances in a court of law may compel some businesses to compromise. Before agreeing to mandatory arbitration, businesses entering into contracts with well-known or publicity-sensitive companies should consider how publicity could provide them leverage in a future dispute.

Industry Expertise. Arbitration offers the parties the opportunity to specify the qualifications of the arbitrator(s) who will decide their dispute. Such qualifications may include relevant industry or technical knowledge that a judge, randomly assigned in court, is unlikely to have. When a dispute is likely to involve complex technical issues or an understanding of a particular industry or area of law or finance, then arbitration may advantageously bring such expertise to bear.

Finality. Unless otherwise specified in the parties’ arbitration agreement, an arbitrator’s decision is virtually unreviewable for errors of fact or law. Generally, no appeal is available from arbitrators’ decisions. The finality of arbitration is advantageous when a prompt and certain outcome, even if unfavorable, is preferable to an extended period of uncertainty and delay. However, when the stakes are very high, the unavailability of any appeal or substantive review leaves the parties without recourse if the arbitrator renders an adverse decision.

Well-defined procedures. Courts follow well-defined and predictable pre-trial and trial procedures and a well-developed body of law interpreting those procedures. Those procedures include the opportunity to test a claim on the merits without the time, expense and risk of an evidentiary hearing on the merits. Motions to dismiss and summary judgment provide the means by which disputes may be resolved completely, or at least substantially narrowed, through a motion to the court rather than a trial. In contrast, procedures in arbitration are not as specific and are subject to broad discretion of arbitrators. Dispositive motions in arbitration are less common and less likely to be successful than in a court of law. Consequently, arbitration is more likely to require the parties’ personnel to appear and testify in person at a hearing before the arbitrator or panel. The parties may mitigate this drawback of arbitration by specifying certain procedures, even adopting the Federal Rules of Civil Procedure, in their arbitration agreement. Yet, such rules and procedures are still subject to the broad discretion of arbitrators to apply.

No jury. Availability of a jury trial may be an advantage or disadvantage depending on a party’s perception of its case. Some claims have “jury appeal,” and some do not. Of course, juries are not available in arbitration. In court, the parties may waive their rights to a jury trial, but both sides must consent.

Expense. As a general rule, arbitration is less expensive than litigation. However, there are exceptions. Arbitration has certain additional costs that can come as an unwelcome surprise to business people who routinely include arbitration clauses in contracts. Courts are, of course, public institutions supported by taxpayers. In contrast, arbitrators must be compensated for their services by the parties. Consequently, in addition to their own attorney fees, the parties must pay the hourly fees of the arbitrator or multiple members of an arbitration panel. The arbitrators’ hourly fees can exceed the hourly fees of the lawyers. On top of the arbitrators’ fees, the parties may separately incur fees to the organization administering the arbitration. For example, in commercial matters in which $1 million to $5 million is in issue, the American Arbitration Association’s fee schedule requires payment of $12,450 in fees to the organization in addition to the arbitrators’ compensation.

“Baby-splitting.” There is more myth than fact to support the stereotype that arbitrators are “baby-splitters” who strive to reach outcomes somewhere between the positions advocated by the parties. The empirical research fails to show that resolving a dispute through arbitration compared to trial by judge or jury has any significant bias or effect on the ultimate outcomes of disputes. Consequently, “baby-splitting” is not a factor that should be considered when deciding whether or not to engage in arbitration.

In sum, arbitration offers some distinct advantages over litigation in court. However, arbitration is not without its drawbacks. Business owners and managers should confer with legal counsel and carefully consider the type of litigation risks they face and the advantages and disadvantages of arbitration in determining whether it is best-suited for their needs.•

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Mr. Badger is a member of Benesch Friedlander Coplan & Aronoff LLP’s Litigation Practice Group in Indianapolis and represents business clients in commercial litigation, arbitration and appeals. The opinions expressed are those of the author.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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