Arbitration and E-Discovery: Make Up Your Own #^%@ Law!
The National Law Journal's annoying practice of making its "best" content available only with a secret decoder ring forged in the fire of subscription dollars, nevertheless did not stop me from access to an intriguing article about arbitration's "e-discovery conundrum" (here for people with the secret code).
In Arbitration's e-Discovery Conundrum (thank you Mr. Thrifty for the copy) the author contends that:
. . . as litigation discovery techniques have become more prevalent in arbitration, arbitration has become just as time-consuming, expensive and burdensome. Without the benefit of an appeal process for the losing party, the primary remaining benefit for binding arbitration -- privacy -- is often outweighed by the other negative factors.
Parties and their litigation counsel have pointed to runaway discovery as one major reason why they have abandoned arbitration in favor of mediation in the United States and even internationally.
So how can "the long-recognized benefits of arbitration -- speed and cost savings -- be restored?"
The author recommends that the process must "address the needs and interests that led them to arbitration in the first place: to balance the need to discover those documents reasonably necessary for a party to prove its case with the cost, burden and time involved in producing such documents, while taking into account the need for fundamental fairness and to avoid surprise and trial by ambush."
Here's where reformers fail to get the direction the law is moving in. It's not about finding a process that fits your needs - it's about creating the process that is tailor-made for your one and only completely unique and unrepeatable dispute.
The beauty of arbitration is not what it is. It is what it can be. The beauty of arbitration is that it allows you to make up your own $%#@^ law and procedure. It restores control of the process to you.
What, you say? Your opponent and you can't agree? This is no longer a good enough reason, particularly because I do not see many attorneys making the effort to craft discovery and case management plans that reasonably addresses the parties' actual need for every document that someone marginally involved in the dispute might have once breathed upon.
I know whereof I speak.
The solution? Sit down, for goodness sake, with your adversary, for as many days as it takes, to reach agreement about what each side actually needs. Leave your huffing and your puffing, your posturing and your adversarial chops at the conference room door. There will be plenty of time for all of that after the only people who actually understand the dispute -- YOU -- agree upon the type of process necessary to resolve it as efficiently and effectively as possible.
The law firms that do this will survive the recession.