Collaborative Arbitration as an Alternative to Court Litigation and More Traditional Arbitration

As a 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.