In-house counsel who
are hesitant about
the use of arbitration
in complex business
disputes should re-examine the tools
available to them to
craft an efficient and
fair process. With
attention invested up
front and along the
way, you can get a
timely, fair, and efficient
process that enables
your company to get
back to business.
attorney, and co-chair of the litigation
department at Murphy & King. He has
been active in leadership roles with the
AAA and currently serves as a member
of its board of directors (see his full
biography at www.murphyking.com).
2 Inside counsel, in consultation with
outside counsel, should take all
available steps to avoid the need for
a binding third party adjudicatory
process in the first place, be it through
arbitration or litigation. Appropriate
drafting of contracts to avoid creating
areas of dispute, implementing built-in
dispute resolution committees and
teams, using standing neutrals who can
provide informed, real time assistance,
facilitated settlement discussions,
participating in very early mediation
(before a lawsuit is filed), applying
the more familiar use of “waterfall”
or “step” resolution clauses, and
many other techniques are available.
Weiner presents talks and workshops
on the need to systemically manage
dispute risk and “plan for failure
in order to succeed” in connection
with commercial relationships.
3 Stipanowich, Tomas J. and Lamare,
J. Ryan: Living with ADR: Evolving
Perceptions and the Use of Mediation,
Arbitration and Conflict Management
in Fortune 1000 Companies. 2013
Pepperdine University School
of Law Legal Studies Research
Paper Series, Paper No. 2013/16
Electronic copy available at: www.
4 We should note that inside counsel
should not hesitate to suggest
arbitration as a more sensible
solution to their colleagues on
the other side even without a pre-existing clause. We also reiterate the
caveats set forth in n. 2 above.
5 Frank E. A. Sander and Stephen B.
Goldberg, Fitting the Forum to the Fuss:
A User-Friendly Guide to Selecting an
ADR Procedure 10 Negot. J. 49 (1994);
see also additional developments of
these thoughts, Frank E. A. Sander,
Lukasz Rozdeiczer, Matching Cases
And Dispute Resolution Procedures:
Detailed Analysis Leading To A
Mediation-Centered Approach, Harvard
Negotiation Law Review Spring 2006.
6 The preliminary hearing is the point in
the arbitration where the map of the
process is confirmed and set. Weiner
regularly requests that parties/inside
counsel — the entities paying the bills
— attend to ensure their understanding
of and buy-in to the process.
7 Thanks to David Evans, Esq. and his
colleague Steven Veenema for this
information; they analyzed data tables
available through the Administrative
Offices of the United States Courts
at www.uscourts.gov (see especially
the data tables in B and C). These
tables are worth a careful look, along
with any available state analogues.
8 Thank you to David Evans, who
researched and spoke to AAA
staff to obtain these results.
9 Thank you to CPR’s Helena Erickson
for this information about the CPR
survey. In response to our query,
JAMS did not have general figures
from time of award available.
10 Various litigation colleagues have shared
with us their views on the relatively
low rates of appeals and reversals.
A look at the extensive information
available from the Administrative Office
of the US Courts ( www.uscourts.gov )
provides interesting data on these
subjects. Table B- 5 under “Statistics
and Reports – Data Tables” tab shows
low percentages of outright reversals
on appeal in the federal courts (“Other
Private Civil” outside of Private Prisoner
Petitions, Bankruptcy and certain other
appeals shows a 13. 4 percent reversal
rate for the 12 month period ending
December 31, 2014, for example.)
11 Thank you to David Evans for
providing information about this
study, which is also available
through the AAA. www.adr.org.
12 Stipanowich, Thomas J. editor-in-chief, available at www.thecca.net/
13 A careful look at the websites of the
major providers will reveal a wealth of
materials and ideas for clauses and
protocols that will streamline arbitration,
in addition to the CCA Protocols cited
above. A detailed analysis of those
tools is beyond the scope of this article,
but representative resources include
CPR’s Fast Track Arbitration Rules,
ACC EXTRAS ON… Commercial arbitration
Leading Practices: Finding
the Best Workflow Allocation
for Your Team (Oct. 2016).
Commentary on Beijing
Arbitration Rules (March 2016).
Meeting in the Middle: The
Advantages of Commercial
Arbitration (May 2015). www.
Could Consumer Contracts
Contain Arbitration Clauses?
(March 2014). www.acc.com/
Arbitration vs. Litigation:
A Corporate Counsel
View (June 2015).
Arbitration v. Litigation,
You decide (June 2015).
ACC HAS MORE MATERIAL
ON THIS SUBJECT ON OUR
WEBSITE. VISIT WWW.ACC.COM,
WHERE YOU CAN BROWSE OUR
RESOURCES BY PRACTICE AREA
OR SEARCH BY KEYWORD.
REASSESSING COMMERCIAL ARBITRATION IN 2017: MAKING IT WORK FOR YOUR COMPANY