Originally from:
AAA Handbook on Arbitration Practice - Hardcover
AAA Handbook on Arbitration Practice - Electronic
Preview Page from Chapter 5
I. Introduction
It is often said that commercial arbitration is becoming protracted and costly and that it simulates court litigation. Some believe it is no longer an efficient process for resolving disputes. Indeed, some attorneys question why they should recommend arbitration when its benefits—an expedient and less expensive means of resolving disputes—are no longer attainable? Are these benefits being undermined by “creeping legalism,” “judicialization,” or “incremental formalism?” The author conducted a survey of leading arbitrators to ascertain their views on this provocative question. Unfortunately, many respondents seem to believe that arbitration is becoming more like litigation to one degree or another. However, most believed that arbitrators have the inherent power to keep arbitration on track and reverse the trend. They provided ideas for handling different aspects of the process and shared information about how they conduct arbitration proceedings.
The criticism that arbitration is losing its allure because it mimics litigation is due largely to the increasing role lawyers play in the process. Because arbitration is a consensual process crafted by the parties, generally through their attorneys, they are in the driver’s seat when it ...
Gerald F. Phillips is a full-time mediator and arbitrator. He is a founding member of the College of Commercial Arbitrators and is an adjunct professor of law at Pepperdine School of Law. He is the chair of the ADR Committee of the State Bar of California. He also chairs the Entertainment and ADR Committee of the ABA Section of Dispute Resolution. He serves on panels of the American Film Marketing Association and the American Arbitration Association.
