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The charge goes out from the client: Sue Them!   Doing the due diligence before drafting a complaint the attorney discovers an agreement between the parties that permits the claim to be filed before an arbitration forum or court.

So where to go?  Choosing which forum to commence the proceeding can prove critical to the case.  The importance of the forum analysis cannot be overlooked.  Factors to be considered include the amount of time it will take to have the trier of fact (judge, jury or arbitrator) render a decision, the type of discovery that will take place in each forum and the costs associated with each forum.

Arbitration includes a generally expedited process where a claim is heard within a year or eighteen months after the filing of the claim.  Conversely, a court proceeding can last from one to three years. Generally no depositions or interrogatories are permitted in the arbitration process. In English, this means unlike a court proceeding a party in the arbitration process has no idea what the other party is going to say when called to the stand. Arbitration attorneys often call the process trial-by-ambush.

An advantage seen in the arbitration process, particularly for individuals as opposed to corporate parties, is the decreased cost associated with the diminished discovery permitted in the forum.   Discovery for an average commercial matter can be the most expensive part of a proceeding. Some, however, do not see the cost benefit of limited discovery.  If the potential claims are believed to be in the range of hundreds of thousands of dollars, then spending tens of thousands of dollars to ensure you acquire the relevant information to prove your case can be seen as money well spent.

Where a party chooses to litigate a case in court, the judge is randomly selected upon the filing of the complaint, where parties to an arbitration will select the arbitrators. This judge in the court case will determine issues ranging from discovery to substantive motions filed by the parties.  In most jurisdictions this will be the same judge that presides over the trial.  In the event a court renders a decision, whether on a pre-trial matter or on the decision from the trial, a party has a right to appeal the issue to an appellate court.

Like a judge, arbitrators rule on various motions including discovery motions such as motions to compel, motions to exclude as well as motions to dismiss certain causes of action.  These are heard prior to the arbitrators ruling on the merits of the case. Importantly, unlike a court proceeding, these decisions by the arbitrators are not immediately appealable.  Moreover, after arbitrators render their final decision, it is very difficult for a party to overturn, or vacate, the arbitration award.  Said differently, the appeal process in arbitrations is substantially more difficult than in court proceedings.

The decision of the forum is critical and should not be disregarded as inconsequential.  Prior to any filing, take the time to determine which forum is better for your matter.

The Law Offices of Barry M. Bordetsky represents parties before courts and arbitration forums. If you have any questions, please contact us by telephone (800) 998-7705 or by email at barry@bordetskylaw.com.