Lest there are those who still need a comforting argument, let us examine the alternatives once more. Although a jury trial could very well be beneficial for issues of personal injury, emotional distress, fraud, Alittle guy vs. big guy" recklessness or fraud, or hoping for a large verdict simply because you are suing a large company, no such benefit exists in disputes between relatively apportioned business people. Few wish emotional distress or punitive damages and instead have a goal of getting the controversy resolved once and receiving their basic damages. Juries award emotional distress and punitive damages much more readily, but who cares? Most businesses don't want to litigate the dispute in the first place, let alone ask for such damages.
Of course, an arbitration can award such damages, but this is relatively rare with an arbitrator who is typically a neutral attorney experienced in the specific industry upon which the lawsuit is brought. It is hard to whip up the emotions of such a person.
And what about the most loathsome of all, runaway attorney's fees? It is almost without dispute that arbitration is much quicker and efficient and therefore eliminates mounds of attorney's fees. The litigation process, especially with recent fast track rules, requires attorneys to make multiple appearances in court, conduct infinitely complex discovery, including interrogatories, requests for admissions, document productions, site inspections, etc. Not to mention a large array of pre-trial motions testing service, the adequacy of the pleadings, and motions to compel or exclude as to what has transpired through the discovery process. It is not unusual at all to spend as much as half of the attorney's fees prior to getting into the court room.
This author believes that the right to pre-trial motions and discovery should be severely limited in arbitration. That theory has been embodied in the arbitration provision that can be freely downloaded from this home page.
And how does one find an arbitrator? That is the least of your woes since there are a number of well-established and qualified tribunals who have lists of qualified experts and attorneys who will serve. This also gives you the opportunity of picking ones that have less administrative costs. Some attorneys even use their own lists. And, one can always use a list of qualified attorneys that are held in the administrator's office of every Superior Court in this State. Finally, there is a very fine organization that specializes in referring nothing but retired Judges.
It is true that the filing and administrative fees are higher for arbitration, since you are basically paying for a private judge. As an example, it may very well cost (your one-half share) $3,000.00 for a two-day arbitration. However, there are no continuances, you try the case exactly when it is set, and the arbitrator gives you his or her undivided attention. After the arbitration award, it is easily confirmed as a judgment of any competent Superior Court.
But, what about the right to appeal? Well, there is isn't one. Arbitration is essentially set in granite and there are very few grounds for overturning it. This prevents further attorney's fees in making motions for new trial, appeals, judgments notwithstanding the verdict, and other unnecessary proceedings.
But what about the wise tale that arbitrators simply Asplit the baby?" In the author's experience, this is not the case. So what are you waiting for? Include arbitration provisions in your contracts and agreements.