Aby Christopher HOPKINS
 June 23, 2006
ccording to this Texas Lawyer article, several defense lawyers contend there is a growing dissatisfaction with resolving litigation through arbitration. In what had to be a prepared statement, one attorney noted, "The nimbleness and simplicity of arbitration has been calcified over the years."

Arguments for businesses to avoid arbitration include (1) scheduling orders and full-blown discovery are becoming a regular part of arbitration, (2) appeal options are limited, and (3) adverse outcomes are hard to explain to clients.

We've also pointed out that there is the expense of enforcing arbitration, which can be difficult, and can run into tens of thousands of dollars (to say nothing of delay). As we've pointed out before, if the concern is cost, efficiency and a wayward jury, then simply include a jury waiver in your contracts. At least a bench trial doesn't cost arbitrator hours (or rates) and you retain all rights of appeal.

An interesting statistic: in a study of 180 cases in 2004, 20% of attempts to vacate an arbitration award were successful. "Exceeding their powers" was the most successful argument.