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Arbitration Myth Busting: Eliminating Misconceptions and Bias Towards Arbitration

When:
September 13, 2022 @ 12:00 pm – 1:00 pm
2022-09-13T12:00:00-04:00
2022-09-13T13:00:00-04:00

Live GoToWebinar presented by Patricia H. Thompson, FCIArb, JAMS. Course number 5820. Registration and details will be available soon.

  1. Arbitration has become a hot topic lately, especially in legal and political circles. The U.S. Supreme court has been issuing arbitration-related decisions almost every term for several years. And national and state legislation has been proposed limiting the right to arbitrate in certain types of disputes by opponents who argue that arbitration is so flawed as to constitute a “denial of justice.”
  2. While there may be policy arguments against arbitration in consumer or employment claim situations, in every type of dispute, it is important that the resolution process fit the problem. The decision of whether to arbitrate a construction dispute should be made like any business decision: weighing costs, risks, benefits and return on investment, based on reliable data about the dispute resolution options available. Such an important decision should not be made based on misinformation, personal intuition, limited experience, or habit.
  3. A business that frequently encounters or often needs to pursue complex claims would prefer to resolve those claims as efficiently, cost effectively, and quickly as possible without sacrificing fairness and due process. The question arises, though which process, litigation or arbitration better serves these goals?


Agenda:

Introduction: [5 minutes]

  • In every type of dispute, it is important that the resolution process fit the problem. So, which is better – arbitration or litigation? The facts favor arbitration.

What is meant by “arbitration”? [5 minutes]

  • In most commercial or construction arbitrations, no two arbitrations should be alike.

Should there be a right of appeal? [15 minutes]

  • It is not true that there is virtually no right of appeal in arbitration.
  • There are many reasons why parties can and should provide for the right of appeal, at any time before or during an arbitral proceeding.
  • Alternatively, some states have statutory arbitration procedures, which allow for appeals of the resulting award judgments. See e.g., Florida Statutes, 44.104.

Does arbitration take as long as litigation? [7 minutes]

  • Another common, also mistaken objection to arbitration is that it is no quicker than litigation.
  • This fallacy is contradicted by court statistics. Such concerns also are outdated, as they fail to consider recent JAMS and AAA rule innovations allowing for the expedited resolution of construction and other commercial disputes.

Concerns that arbitration is as expensive as litigation. [8 minutes]

  • A similar misconception is that arbitration must be as costly as litigation. However, statistics prove that because arbitration is quicker, it is less expensive
  • The selection of arbitrators also greatly affects the cost of an arbitration.
  • Parties should, in their arbitration agreement, limit the use of motions and discovery.

The final hearing: [10 minutes]

  • There are many ways in which the arbitration hearing – itself – can be so much better than a court trial for resolution of a complex business or commercial dispute.

 

Patricia Thompson

Patricia Thompson, JAMS Mediator and Arbitrator

Patricia H. Thompson, Esqis a full-time neutral at JAMS, concentrating her practice in construction and surety claims, employment discrimination, wage and non-compete disputes, fidelity and business insurance coverage analysis, and other complex commercial disputes.

As an arbitrator, she uses lessons learned over 46 years of trial, arbitration, and appellate practice to pro-actively manage arbitrations to be a more efficient, fair and cost-effective method of dispute resolution than litigation. As a mediator, she guides the exchange of necessary information in advance of the parties’ joint sessions, assists in planning how to structure the negotiation sessions, and uses experience and preparation to help the parties assess risk, value claims, and make informed decisions as to the best avenues of resolution.

Ms. Thompson has been regularly listed in The Best Lawyers in AmericaChambers USA Guide to America’s Leading Business LawyersThe International Who’s Who of Construction and Business Lawyers, and similar Florida publications ranking attorneys in her areas of practice concentration. She is a fellow of both the American College of Construction Lawyers and the Chartered Institute of Arbitrators, and a member of ArbitralWomen.

Ms. Thompson has served as chair and in other senior leadership roles of major committees of the Tort and Insurance Practice and Litigation Sections of the American Bar Association. In 2012, she was awarded the Martin J. Andrew Award for Lifetime Achievement in Fidelity and Surety Law by the Fidelity Law Committee of the Tort, Trial and Insurance Practice Section of the ABA.