Making the Case for Arbitration
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Is litigation “better” than arbitration? What does “better” mean, and who decides?
The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint. I speak from the standpoint of one who, for over 40 years, has counseled businesses and their owners, tried their cases in both court (jury and nonjury) and arbitration, and served as neutral arbitrator, either as sole arbitrator or as a member of chair of a multiarbitrator panel, in hundreds of commercial cases.
ADR is commonly known as alternative dispute resolution. Many of us who litigate and arbitrate, and certainly those of us who serve as neutral arbitrators and mediators, prefer to define ADR as appropriate dispute resolution. For, as in all things, context is important—and often outcome-determinative. Whether in an intellectual property licensing agreement, a franchise agreement, a construction contract or even a “routine” business agreement, choosing the forum and the decision-maker to which the inevitable disputes are to be submitted are matters that deserve substantially more thought than they frequently receive.
Read more: www.corpcounsel.com/id=1202666407510/Making-the-Case-for-Arbitration#ixzz3AH3BhTmF
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