For 30+ years arbitration has been the Boston Red Sox of my law practice- a second favorite. I have participated in hundreds of arbitration proceedings, as my clients often make contracts requiring this mode of dispute resolution. Given a choice, though, I have grown to prefer court trials, before judges and juries.
The extra administrative costs imposed on clients to commence arbitration in complex or high value matters is often far greater than the costs of initiating and prosecuting court action. Filing fees in arbitration are often based on a sliding scale tied to the value of a claim. A court filing fee is slight, regardless of the value of the case. Coupled with the ongoing administrative fees charged by some organizations the cost to merely access the arbitration process can be exorbitant. The discovery process in arbitration is not all that much shorter or less expensive then court cases- documents must still be produced, depositions taken, and experts retained in both forums.
Hearings and trials can be crowded affairs. While discovery can be conducted piecemeal, over time and with varied participants in varied locales, hearings and trials are mostly convened in crowded government buildings. Just getting to the courtroom can be an ordeal. Many local jurisdictions are now imposing mandatory temperature monitoring and completion of health screening questions upon entry. The courtroom itself can then be as crowded as any church on Sunday.
But my favored courtrooms are ill-equipped for post-COVID dispute resolution. The buildings we admire for their historical details, and those we tolerate despite their dated or cramped layouts, are simply not conducive to social distancing. It is going to take years, and bundles of tax dollars, to retrofit these facilities for modern and safe dispute resolution.
So that we may serve our clients, now and for the immediate future, all lawyers who rely heavily on litigation must reassess whether the courts remain the best forum for dispute resolution in complex civil matters.
I am ready to re-embrace arbitration because the most readily controlled facet of the process is location. An arbitration can be conducted in any mutually agreed location, of any size, and can be readily mixed with remote broadcasting. The forum can be tailored to the specific needs of any party, witness, lawyer or arbitrator.
Some items that I might consider for future arbitration cases include:
The participants- Whether any person who will participate or appear has a particular health vulnerability that must be accommodated by particular hygiene protocols, space or distance technology. These issues might pertain to one, some or all participants.
The space- Where the space is located, how it must be accessed, and whether it is sanitary. The public library conference area may be less of a controlled environment than the conference center of a court reporting service or hotel, for example.
The technology- Where remote participation by video is necessary because of health concerns, whether it is secure and truly interactive, and can it be intentionally or inadvertently misused.
The cost- The very issue that often pushed me in the direction of a courthouse remains an important consideration. Extra health protocols, technology and spacing will only add to the costs associated with arbitration. This is simply not avoidable until every person has been inoculated against the disease.
The cost-benefit analyses done pre-COVID for existing cases are no longer reliable. Employed clients may be unemployed, entities may now be financially strapped, and the immediate financial needs and burdens for all have certainly changed. These factors, including the human cost of litigating in court versus a private arbitration, are now interacting in a way that requires a top to bottom review of how cases are valued and conducted to disposition.
I am ready to re-embrace arbitration as part of this practice wide re-evaluation.
The extra administrative costs imposed on clients to commence arbitration in complex or high value matters is often far greater than the costs of initiating and prosecuting court action. Filing fees in arbitration are often based on a sliding scale tied to the value of a claim. A court filing fee is slight, regardless of the value of the case. Coupled with the ongoing administrative fees charged by some organizations the cost to merely access the arbitration process can be exorbitant. The discovery process in arbitration is not all that much shorter or less expensive then court cases- documents must still be produced, depositions taken, and experts retained in both forums.
Hearings and trials can be crowded affairs. While discovery can be conducted piecemeal, over time and with varied participants in varied locales, hearings and trials are mostly convened in crowded government buildings. Just getting to the courtroom can be an ordeal. Many local jurisdictions are now imposing mandatory temperature monitoring and completion of health screening questions upon entry. The courtroom itself can then be as crowded as any church on Sunday.
But my favored courtrooms are ill-equipped for post-COVID dispute resolution. The buildings we admire for their historical details, and those we tolerate despite their dated or cramped layouts, are simply not conducive to social distancing. It is going to take years, and bundles of tax dollars, to retrofit these facilities for modern and safe dispute resolution.
So that we may serve our clients, now and for the immediate future, all lawyers who rely heavily on litigation must reassess whether the courts remain the best forum for dispute resolution in complex civil matters.
I am ready to re-embrace arbitration because the most readily controlled facet of the process is location. An arbitration can be conducted in any mutually agreed location, of any size, and can be readily mixed with remote broadcasting. The forum can be tailored to the specific needs of any party, witness, lawyer or arbitrator.
Every case includes persons suffering some manner health issue that compromises their immune systems. During the halcyon days of last December, most personal health issues would have been unworthy of a mention in the context of a case. Today and until we are all vaccinated, however, the relative health of all participants in a legal dispute must be acknowledged, respected and accommodated.
Some items that I might consider for future arbitration cases include:
The participants- Whether any person who will participate or appear has a particular health vulnerability that must be accommodated by particular hygiene protocols, space or distance technology. These issues might pertain to one, some or all participants.
The space- Where the space is located, how it must be accessed, and whether it is sanitary. The public library conference area may be less of a controlled environment than the conference center of a court reporting service or hotel, for example.
The technology- Where remote participation by video is necessary because of health concerns, whether it is secure and truly interactive, and can it be intentionally or inadvertently misused.
The cost- The very issue that often pushed me in the direction of a courthouse remains an important consideration. Extra health protocols, technology and spacing will only add to the costs associated with arbitration. This is simply not avoidable until every person has been inoculated against the disease.
The cost-benefit analyses done pre-COVID for existing cases are no longer reliable. Employed clients may be unemployed, entities may now be financially strapped, and the immediate financial needs and burdens for all have certainly changed. These factors, including the human cost of litigating in court versus a private arbitration, are now interacting in a way that requires a top to bottom review of how cases are valued and conducted to disposition.
I am ready to re-embrace arbitration as part of this practice wide re-evaluation.
