Arbitration emerged as a mainstream form of dispute resolution because many litigants were fed up with the cost and time of traditional litigation. Parties saw arbitration as an efficient, cost-effective alternative to litigation, and flocked to it like a cure-all elixir. The litigants, however - undoubtedly used to ways of traditional litigation - brought along with them much of litigation's baggage. This baggage, including extended discovery and motion practice, long hearings, and frequent appeals left arbitration bloated and slowly transformed it from cost-efficient and speedy to expensive, slow and frustrating.
Now, many parties and attorneys alike are retreating from arbitration. These parties are either reverting back to litigation or searching for other forms of dispute resolution. Mary Swanton, System Slowdown: Can arbitration be fixed?, Inside Counsel, (May 1, 2007). In fact, many parties – especially companies – are removing mandatory arbitration language from underlying business and employment contracts. Id. The parties who are jumping ship are doing so mainly because of a perception of high costs and time.
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