litigator, I worry about allowing my client to go to arbitration where the
rules of arbitration are more focused on quick resolution at the expense of
having the parties prepared. Some of the arbitration rules, so short circuit
discovery, it is clear that they were written by people who had little
understanding of what it takes to get all the information necessary to put your
client's best foot forward. I just cannot recommend that my client use arbitration
if the rules will not allow me to be prepared to best represent my client.
Over the last
few years, I have been contemplating ways to resolve disputes without aid of
the court system. Now with limited civil
services available and increased delays in the courts due to budget cutbacks I am
even more motivated to find alternatives to the court system to resolve
disputes and best represent my clients.
The rules of civil procedure in the courts
also promote an adversarial nature among lawyers rather than an attitude of collaboration among the lawyers and the courts, which I beleive would be of greater benefit to the
clients. Most cases involve major game
playing, just to get information that is obvious that we are entitled to. I am
confident that much of the cost
and time consumed in court litigation is spent trying to avoid providing
evidence, facts and documents to the other side, at least, on average, increasing
the client’s costs by more than fifty percent. It is for this reason, I like
the Federal Rules of Civil Procedure and the attitude that everyone must just
start, right off the bat turning everything that is material to the dispute,
over to the other side.
I have coined the phrase, "Collaborative
Arbitration." Collaborative Arbitration is a method of dispute resolution
whereby the arbitrator is actively involved in all aspects of the dispute
resolution process, including the conduct of discovery, the gathering and
evaluation of the evidence and issues, all right from the get-go. Any problems
with discovery, all the attorneys need to do is pick up the phone and
conference with the arbitrator, who should be able to resolve the issue within
a week, if not immediately.
All evidence, issues, arguments and documents
are exchanged via an online database, such as CaseMap, that organizes the
evidence by person, party, issue, time, etc. and all parties and the arbitrator
get to see and analyze the case, evidence and issues as they are exchanged and
put into the shared database. The arbitrator is as familiar with the facts and
issues of the case as the attorneys, within a month of commencement of the
arbitration and can start evaluating the case at the earliest stages. I would
expect that within a month, the arbitrator should be able to let the parties
and their attorneys know, through the arbitrator's eyes, where the case is
heading and very early on, even let the attorneys know of the weaknesses in
their case. I suspect that if the parties knew within a month or two what the
shortcomings of their case was, they would act quickly to shore up their case
or settle quickly.
This very active involvement of the arbitrator
is very different from typical court litigation or other arbitration methods
where the judge or arbitrator doesn't really get to focus and analyze the
evidence and issues until the conduct of trial or arbitration hearing. I
believe that the earliest involvement of the arbitrator gives the arbitrator
the best opportunity to to make the best decision possible.
What I am suggesting is not mediation.
However, armed with the knowledge of the facts, evidence and issues, in a
very non-traditional sense, the arbitrator should be in a position to quickly
mediate the dispute and get the parties to settle.
Collaborative Arbitration would make heavy use of the internet, allowing
parties and attorneys and arbitrators full opportunity to present their side of
the argument from thousands of miles away from each other. Hearings,
conferences and depositions, can all be conducted online with video or
in-person, cutting travel costs. The online technology is so affordable
now that there are very limited reasons to conduct hearings in person.
Admittedly, there is an added cost of having a
very active arbitrator as a participant. Hopefully, however, that added
cost would be more than offset by the quick resolution of the matter and the
parties should be satisfied that they had the best and quickest opportunity to
settle the dispute.