There was an interesting post yesterday on the Wall Street Journal Law Blog – which by its topics provides a nice little overview of the zeitgeist of the legal world at any given moment – on arbitration as an alternative to litigation. The post discusses a column from the Financial Times supporting the growth of arbitration in the face of consideration by the Supreme Court of a case concerning just how much freedom parties have in constructing the format of the arbitration under the Federal Arbitration Act. The column itself is here. What’s interesting to me about all of this is that at the same time business media of this nature is singing the praises of arbitration, the lawyers for much of that business community don’t much like it as a tool for resolving complicated disputes, as I have discussed in a number of posts, including – most recently – here. Is there a disjunct over the question of the efficacy of arbitration between the business communities and their lawyers, including their in-house lawyers, who are tending not to favor arbitration for their own disputes? Or is there only a disjunct between the media who cover that issue and the business community and its lawyers?
Incidentally, the Supreme Court case involving arbitration concerns the extent to which the parties can structure their rights and remedies in that process in the face of the Federal Arbitration Act, including the extent to which they can appeal an arbitrator’s ruling in the court system. As a frequent commentator on arbitration and one who regularly represents parties in arbitration, I have no doubt that expanding the power of the parties in such a manner can only improve arbitration, at least of commercial cases involving parties of roughly equal bargaining power.