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Confessions of Two Former General Counsels—Has Arbitration Changed or Have We?
Ten years ago if you asked us what we thought of arbitration we probably would not have had too many positive things to say. As former general counsels, we approached commercial disputes that could not be resolved via negotiation or mediation as bound for court. Not that we welcomed the idea of litigation, but we were skeptical of domestic arbitration as an alternative. Why? Well, there were a number of reasons.
For one, we did not know as much about it as we should, and, like it or not, we were very used to litigation. Arbitration seemed like a non-transparent process where you had to take a shot on unknown individuals rendering a decision that was not subject to appeal. Maybe they would apply the law or maybe not. And if you had a strong case, arbitrators would likely be inclined to “split the baby” and produce a compromise award. And if you were a defendant and, as our large corporations generally were, courts provided an opportunity for dispositive motions ending frivolous cases early on while arbitration did not.