Debunking Misperceptions: The Upsides of Commercial Arbitration

(©2021 Published in Litigation, Vol 47, No. 4, Summer 2021, by the American Bar Association. Reproduced with permission. All rights reserved.)

We all recall The New York Times’ three-day, front-page series in 2015 entitled “Beware the Fine Print,” and the provocative tagline of its first segment, “Arbitration Everywhere, Stacking the Deck of Justice.” The series raised legitimate questions concerning the fairness of “forced” arbitration agreements prohibiting consumers and employees from filing individual claims in court or joining a class action. Many of us were concerned at the time that the Times series would be perceived by the business community as an indictment of the arbitration process as a whole, including commercial arbitration, in light of what the authors characterized as the privatization of our justice system; its secrecy; and neutrals who at times “have twisted or outright disregarded the law.”  Published rebuttals of that narrative have been few and far between.  

Similar concerns arose a few years later when a federal district court judge issued a pair of opinions that challenged the perceived advantages of commercial arbitration. The court stated in one opinion, “Arbitration is to justice as a metronome is to a Stradivarius.” The other concluded by asking, rhetorically, as between arbitration and litigation, “Which course is better?  You be the judge.” 

We are pleased to share with you our article entitled “Debunking Misperceptions: The Upsides of Commercial Arbitration,” which has just been published by the American Bar Association in Litigation. Intended primarily for disputants and their advocates, the article responds to commentators who have challenged, unfairly in our view, the fundamental proposition that commercial arbitration is a viable, and often preferable, alternative to litigation.

Which is the better process?  We invite the reader to be the judge.

*The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization.