What are some of the principal considerations in selecting whether to have a case determined through arbitration as contrasted with court litigation?
A provision in the parties’ written agreement may require that all disputes arising out of or relating to that agreement be resolved by arbitration. There, the parties lack any real choice whether to litigate or arbitrate (unless they stipulate mutually to waive the provision). Conversely, even where there is no applicable contractual arbitration clause, and no other mandate for arbitration, the parties can consent in writing to submit their dispute to arbitration. Thus the decision whether to arbitrate can be made either before or after the dispute has arisen, but in either event it typically requires agreement. An advantage to arbitration is that the parameters that can be specified in the governing arbitration clause are virtually limitless, including identifying the governing forum and applicable rules, number of arbitrators, their qualifying expertise and experience, how much discovery may be conducted, available remedies, the locale of the hearing, whether the award will be “bare
