OK, so in Part One we all agreed that we need to give people a better choice than the one between a system of civil litigation that does a great job of permitting appeals, but is perceived to be, or is, too cumbersome or expensive to resolve disputes; and a system of arbitration that, one hopes, is cheaper, but does not permit, at least the judicial appeal that parties might wish to have available if the arbitrator gets it “wrong.”

So what is the better choice? We’ll start by explaining what the better choice is not. For decades, we have been trying to solve problems like this substantially by revising the rules. In the early 1980s, the big “solution” in dealing with litigation costs was supposed to be meeting and conferring. The idea, reasonable enough on its face, was that if parties were genuinely required to talk through and seek to resolve disputes before they went to court, there would be fewer disputes. Then came a wave of discovery limitations – limiting the number of interrogatories, number of requests for admission, number of hours of deposition, etc. – coupled with signatures and sanctions for discovery abuse. Then came requirements for initial disclosures. And more recently, the “solution” has been amendments to deal with the breadth and expense commonly associated with electronic discovery.

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