"See You In Court...I Mean...Arbitration!" Part 4 (Expert Decision-Makers)
Is hiring an “expert decision-makers” an advantage of arbitration over litigation?
In this The Candid Counsel series on arbitration, we have considered some of the often-cited advantages of arbitration over litigation and whether they are real. Supposed advantages are Confidentiality and Speed and Finality – covered in previous posts. That “Expert Decision-Makers” preside over arbitrations is another often-cited advantage. That is the topic of today’s post.
With arbitration, you and your adversary choose your arbitrator, or at least agree on a process for selecting one. This is a key difference from litigation and – depending on the subject matter of the dispute – can be a major advantage over litigation. If your business is in an industry with unique or arcane customs, or your business’s products and services are complex and beyond a layperson’s understanding, you may appreciate having a decision-maker who already knows your industry and/or understands your products and services and does not need to be “educated.” After all, that education takes time. It also costs money – namely, the money you will have to pay your lawyers and possibly expert witnesses to provide the education to the decision-maker.
So, for example, if you are in the reinsurance business, you may want your contracts to specify that all disputes will be arbitrated before an arbitrator who has been certified by The AIDA Reinsurance and Insurance Arbitration Society. Or, if you are in the aerospace business, you may want your contracts to specify that all disputes will be arbitrated before an AAA arbitrator who is on its specialty aerospace panel.
Having a decision-maker in arbitration who is interested in your dispute – some people seriously love reinsurance – may also be an advantage. By contrast, in litigation, judges and juries may not appreciate their forced education in a new business and/or industry, which may lead them to miss key points, which may lead to an unfair result.
Another supposed advantage of arbitration to consider with counsel as you decide what’s right for your business is Cost – the topic of the next post.