{"id":1105,"date":"2012-08-17T10:01:14","date_gmt":"2012-08-17T14:01:14","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1105"},"modified":"2012-08-17T10:01:14","modified_gmt":"2012-08-17T14:01:14","slug":"dispelling-arbitration-myths","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2012\/08\/dispelling-arbitration-myths\/","title":{"rendered":"Dispelling Arbitration Myths"},"content":{"rendered":"

A panel at the ABA Annual Meeting in Chicago once again engaged in “Myth Busting,” using facts and logic to dispel many of the notions that, without factual basis,\u00a0encumber user perceptions of arbitration.\u00a0 Among these are that arbitrators “split the baby” and that arbitration is as costly and lengthy as litigation, but without the right of appeal.<\/p>\n

The presenters included Mark Morril of Viacom, Eric Tuchmann of the American Arbitration Association, Nikolaus Pitkowitz of Vienna, Edna Sussman of New York, and Roy Weinstein of Micronomics Inc.<\/p>\n

Two main themes arose.\u00a0 The first is that actual outcomes in arbitration do not support the proposition that arbitrators\u00a0compromise claims.\u00a0 The materials for the panel included the 2001 AAA report titled “Arbitrators Do Not ‘Split the Baby’: Empirical Evidence from International Business Arbitrations.”\u00a0 That venerable paper demonstrates that arbitrators rarely, if ever, split an award between disputants.\u00a0 That finding was echoed in a more recent study<\/a>, showing that the practice simply doesn’t happen.\u00a0 Yet the recent Rand Report<\/a> notes that many corporate counsel nevertheless believe that arbitrators will award something to each party, for fear of offending someone.\u00a0<\/p>\n

It’s not often that a community of specially bright folks persists in a conviction that is inconsistent with widely available facts.\u00a0 Loch Ness monster, anyone?<\/p>\n

\"\"<\/p>\n

The second area of emphasis was party control,\u00a0a feature that is at the very heart of arbitration but that is too seldom exercised.\u00a0 Edna Sussman reminded the audience that, insofar as arbitration is the creature of contract, the parties who agree to arbitrate may also agree to fashion the arbitration process.\u00a0 Parties who are concerned with splitting the baby may require the arbitrator to find for one party or the other.\u00a0 Parties afraid of runaway\u00a0costs may contractually limit discovery.\u00a0 Parties concerned with extended processes may limit the time between filing and hearing, the duration of the hearings, or the time between hearing and award.\u00a0 More important than any other component, as Mark Morril pointed out, was party supervision of arbitration counsel.\u00a0 If a business simply hands over the process to outside counsel, it cannot be heard to complain about a loss of control that the business itself ceded.<\/p>\n

Arbitration can offer\u00a0distinct advantages over business litigation.\u00a0 But as Tom Stipanowich often reminds us, \u00a0its most salient feature is flexibility.\u00a0 Parties are well advised to use it, and to craft a process that avoids whatever terrors concern them.<\/p>\n","protected":false},"excerpt":{"rendered":"

A panel at the ABA Annual Meeting once again tackles the baseless myths that pervade how arbitration is perceived<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9],"tags":[20],"class_list":["post-1105","post","type-post","status-publish","format-standard","hentry","category-arbitration","tag-arbitration"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1105","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1105"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1105\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1105"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1105"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1105"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}