What now, arbitration?

Let’s all admit and accept the truth – within the next 10 years THE primary disputing system for most civil matters will be arbitration. Trial courts, juries and appellate courts will continue to dominate criminal and family matters and some personal injury cases. Who knows what will happen with cases involving Information Law.

Whine about it, complain, tilt at windmills, but get over it – and quickly. Staying out of arbitration or challenging an arbitrator’s award are now virtually impossible in either state or federal courts in Texas (the archives on this blog for the Law of Arbitration are littered with posts about recent cases supporting this proposition). Thus, let’s now start looking at discovery and evidence in arbitration proceedings. The implicit deal is supposed to be easy introduction of all sorts of evidence that would not come in at trial, in return for much more limited discovery. But wait. How do I know if thousands of unrelated arbitrators all over the world are keeping the deal? There’s no body of rules common to each jurisdiction and no reporter system so I can read cases reviewing what happened on these points and learn what’s discoverable or how to get it into evidence before the arbitrator.

Over the next several months, we will be exploring these issues. We invite your comments and hope we can get a conversation started.

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arbitration, law, ADR, dispute resolution