Arbitration & Mediation Services
Archived Article
Written 10/09/14
RECLAIMING THE PROMISE OF ARBITRATION
Phil Cutler
© Philip E. Cutler 2011, 2014
From the earliest days of the Washington Territory, arbitration has been a recognized method of dispute resolution in our state; the Legislature enacted Washington's first arbitration act in 1869. Historically, arbitration has been popular, especially among businesses; notwithstanding its higher forum costs (the parties pay not insignificant filing fees and bear the cost of compensating the arbitrator), it offered parties a number of benefits not available in a litigation forum: the opportunity to select the decision-maker, usually someone experienced in resolving business disputes; confidentiality; an early opportunity for a hearing on the merits; and a final award, not subject to interminable appeals. Moreover, arbitration was a more expeditious and less expensive alternative to litigation, largely because “discovery” and motions practice in arbitration were limited and parties had no need for significant case preparation time.
Over the last 20 years, however, arbitration has taken on more and more of the hallmarks of litigation, with parties saddled with the sort of wide-ranging discovery and motions practice common in litigation. The reasons are many and varied, and lawyers, their clients, and arbitrators all bear responsibility for the change. Lawyers are used to litigation, where extensive discovery and motions practice are the norms, and frequently ask – often jointly – that the arbitrator use court rules as a template for discovery and case management. Since arbitration is fundamentally contractual,4 if the parties agree (as manifested by their lawyers’ agreement) on a process that more resembles litigation, arbitrators have been understandably reluctant to impose their own views of how that process should work.
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