IF YOU MUST ARBITRATE, ARBITRATE WELL

Our readers will are aware of our distaste for arbitration in any other context than some consumer industries.  Resolving a legal dispute before a referee whose decision, even if egregiously wrong, may not be appealed, is too high a price to pay for a process that is not always that much cheaper than a lawsuit.

But if one must include an arbitration clause, do it well.  Those clauses must describe both the matters to be arbitrated and the arbitration process.  This can be done in shorthand without adding hours’ worth of fees and pages upon pages to the contract, but it must be written in, and written in clearly.

And if one, having an arbitration clause, perseveres and will actually arbitrate, arbitrate well.  Many arbitrations happen after a lawsuit has been filed, when the defendant files a motion to send the case to arbitration pursuant to a proper clause in the contract.  The timing for that motion is important.  Too late into the lawsuit, and certainly any time after the defendant engages in discovery, and the motion will be denied because the court will deem arbitration rights waived.

In arbitration as in other matters, your attorney’s attention to details should be a salient quality.