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area. These advantages
have made arbitration an
increasingly popular means
of resolving commercial and
consumer disputes, and
have resulted in a high level
of satisfaction reported by
those who have used it.
Control over the Process
Because arbitration is
contractual, the parties have
significant control over the
process from beginning to end.
The parties may specify and
select the forum for the
arbitration, who will serve as
arbitrators, and the rules and
procedures that will be used
for the process, including
discovery protocol and the
length of the process.
Available Forums
Parties have many options in
selecting a forum, including
national forums such as the
American Arbitration
Association (“AAA”), Judicial
Arbitration and Mediation
Services (“JAMS”) and the
National Arbitration Forum
(“FORUM”). There are also
industry and smaller regional
forums such as the Financial
Industry Regulatory Authority
(“FINRA”) and the Texas
Arbitration and Mediation
Services (“TAMS”). These
forums have pools of qualified
arbitrators and a variety of
procedures available for the
parties to utilize if they so
desire. Most forums allow the
parties to completely customize
the process to suit their
individual needs.
Selecting Arbitrators
In selecting arbitrators to hear
the dispute, the parties have
many options available. They
may select a specific local
business person or attorney
to serve as the arbitrator in
advance, by name. They may
select them based on
professional experience and
background, industry expertise,
sensitivity to cost, the number
of decisions made or their
availability to hear the dispute.
Parties may also opt for various
list processes used by the
different forums. Regardless of
which method is used, the
parties have control over who
will ultimately hear and decide
their case.
Procedures and Protocols
Parties have the ability to
customize the procedures that
will be used in their arbitration
proceeding. Having this
flexibility means the parties can
design the process to meet their
specific needs on a case by case
basis. This includes
customizing the discovery
process, which can mean
significant cost savings and
shorter time to a resolution.
Parties can decide, for example,
how many depositions will be
taken and where, how long the
discovery process may last, how
many document requests may
be served and what documents
and information must be
provided as a matter of course.
Discovery is frequently the most
expensive aspect of litigation,
so having control over these
costs can mean the difference
between being able to submit a
case to the arbitrators for a
decision verses settling for
less than you believe you are
entitled to recover simply
because you cannot afford to
complete the process.
Cost Control
The primary factors that impact
costs are the time it takes to
conclude the dispute, the scope
of discovery permitted, the
extent of the motion practice
permitted and the appeal
process. In arbitration, each
of these factors can be agreed
upon by the parties and limited
or expanded to meet the unique
needs of each dispute. By
contrast, parties have little
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October 2015
25
The Credit Professional