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Special Section Litigation vs. arbitration PLUS panel looks at both options By Phil Zinkewicz Much has been written over the last few decades about what many believe are excesses in the tort liability system. High jury awards and the imposition of punitive damages have dominated the headlines, and calls for significant changes in the tort liability system have come from consumer groups, insurance companies and lawmakers. About 15 years ago, litigants began experimenting with an alternative to civil litigation—arbitration. The idea was that binding arbitration would reduce legal costs considerably and lead to a more speedy resolution of the dispute. During the last 15 years, there has been a growth in the employment of the mandatory arbitration clause concept in written contracts. However, has arbitration worked as originally conceptualized? That is the question that Randall Miller, partner in the law firm of Sedgwick, Detert, Moran & Arnold, will put to his panelists at next month’s annual PLUS conference. The panel is titled “Let’s Arbitrate! It’s Fast, Cheap and Fair … Right?”; with Miller as moderator, the panel will include: Jean Baker, American Arbitration Association; Mike Merlo, Aon Bermuda; Kathryn Jacobson, Marsh US Consumer; and Edith Matthai, Robie & Matthai. “The idea of the panel will be to explore the concept of private arbitration and how it has worked in professional liability disputes,” says Miller. “We’ve seen a tremendous increase in arbitration cases between the client and the professional, and enough time has passed so that now we can examine the anecdotal evidence to see where arbitration has worked well and where it hasn’t.” Miller says he has planned his panel in such a way that it will be upbeat, dynamic and interactive with the audience. “The four people on the panel are from the world of arbitration and I have formulated a number of questions to elicit their true feelings about the concept. In addition, we will have a question and answer opportunity for the audience.” The panel leader says he has defended many professionals involved in civil actions. “One question I ask my client at the outset is whether he or she wants to go to arbitration or whether a civil trial is preferred,” says Miller. “And, I explain to the client the advantages and disadvantages of both approaches.” For example, according to Miller, in a civil trial the losing party has the right to appeal. Not so in arbitration proceedings, he says. “In contracts where there is a mandatory arbitration clause, you cannot go to court because arbitration is a valid contractual decision. In the past 10 or 15 years, we have rarely seen mandatory arbitration clauses, but they are now becoming more frequent. So we, as an industry, need to look at the concept of arbitration in more detail.” Continued Miller: “Certainly members of PLUS need to understand the complexities of the arbitration process. That’s what I want to do at this PLUS annual. I want to educate PLUS members as to how arbitration has performed since its inception.” * |
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