I recently attended a conference where one of the panels explored in-house perspectives on arbitration. It was not so long ago that I was speaking from those in-house chairs, so the topic is always of interest to me.
On this particular occasion, one of the speakers announced that they prefer juries over arbitrators any day of the week. I find it fascinating that this is someone's reality.
Based on the presentation, it seems arbitrators - my words - are more unwieldy than juries. Juries take their assignments seriously and there is no worry that the jury is taking action to secure a future career as a successful juror. Unlike the arbitrator, apparently.
I spent ten years in-house, writing arbitration clauses, developing training, promoting best practices, vetting arbitrators and understanding the nuances of the institutions and their rules. So I am perplexed by these types of pronouncements.
The in-house arbitration user is uniquely positioned to create arbitral processes that are fair, efficient and cost-effective. This begins with the dispute resolution clause, an oft-neglected provision that has the potential to provide streamlined and sensible arbitrations and arbitrator selection mechanisms. It continues with the arbitrator selection process, and then arbitrating the case, rather than litigating it under the auspices of an arbitral institution.
Further, the AAA has reported that:
Direct losses associated with additional time
to trial required for district court cases as
compared with AAA arbitration were
approximately $10.9-$13.6 billion between
2011 and 2015, or more than $180 million
per month. Direct minimum losses associated
with additional time through appeal required
for district and circuit court cases as compared
with AAA arbitration were approximately
$20.0-$22.9 billion over the same period,
or more than $330 million per month.
There are innumerable initiatives and programs undertaken by the arbitration community to address concerns over quality, efficiency and fairness. For example, see (in alphabetical order):
To be clear, I do not think that all disputes should not be arbitrated. But a blanket statement that juries are patently better than arbitrators is an overstatement that is undeserved.