An astounding arbitration award is the subject of one appellate opinion issued this week. It seems more common for extraordinary arbitration awards to be issued compared to jury verdicts. That's purely my observation and not based on any objectively accumulated data.
I don't like arbitration compared to litigation. I have found that once an arbitrator determines she likes a case, that case cannot lose. Arbitrators tend to get in a rut on a side and lose objectivity as the case proceeds. On the other hand, I have been with many judges who do not let one prior ruling have any influence over the next one; they remain focused on the specific merits of each item before them.
The arbitration process is too informal. The arbitration venue can be an office conference room for example. It lacks the decorum and energy of the court room. That, in turn, tends to make witnesses less careful. Cross-examination is also diluted in its intensity. The informal setting just does not invite an aggressive cross, which I find hurts a case. I like to think I have my witnesses ready for the toughest cross. I usually find the other side has not similarly prepared its witnesses.
The final point is arbitrations get too much of a local, small town colleague vibe. This is especially true in outstate arbitrations. The legal community gets very small. The options for arbitrators gets really, really small very quickly.
Price is not particularly better with arbitration. You still have depositions and discovery. You also are splitting the arbitration fee, which well be thousands of dollars.
All in all, I avoid arbitration. I do not have it in my clients' contracts as a dispute option. If you want to find out more on this thought process, give me a call and I'm happy to share my thoughts with you.
