The rapid growth of commercial arbitration has not been without drawbacks. As counsel have become more sophisticated in dispute process design, arbitrations now often incorporate many elements of a court trial. Litigation constructs such as detailed pleadings, broad-based discovery, provisional relief, dispositive motions and formal rules of evidence are often now a part of arbitration. The inevitable consequence of these changes has been increased expense and delay.

To preserve the benefits of arbitration, it is necessary to address this issue from several perspectives, starting with the arbitration clause. A thoughtful process usually should include a negotiation or mediation step, reasonable limits on the scope of discovery, overall time limits on the arbitration, and the designation of one rather than three arbitrators whenever possible.

Originally published on Law.com on September 12, 2014.