These days it seems that hardly anyone has a good word to say for arbitration. In consumer matters, arbitration clauses are often inserted into “agreements” on a take-it-or-leave-it basis, imposed by a party in a position of power upon a party without power. This has produced a backlash against arbitration by people who feel that they are being forced into arbitration and deprived of their day in court.

In commercial dealings, arbitration has become increasingly cumbersome and costly. Standard arbitration agreements and practices have taken on all the trappings of litigation: protracted discovery, motion practice and the overlay of the rules of evidence. Litigators, accustomed to the rules and procedures of the courtroom, import those into arbitration, demanding more depositions, serving document production requests, filing dispositive motions and even motions in limine. With so many arbitrators conducting arbitration hearings with the precision of a courtroom, it’s no wonder that arbitration is getting a bad name.