Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators

Abstract

Today, arbitration is a key alternative to the litigation of business disputes within the United States and other countries and is the primary method of adjudicating international commercial disputes. Growing numbers are seeking to promote themselves as advocates specializing in arbitration or as “professional” arbitrators. In light of these developments, it is surprising that there has never been a wide-ranging, thoroughgoing empirical survey of practices and perspectives among experienced commercial arbitrators. An opportunity to help fill this gap was afforded in connection with an invitation to Professor Stipanowich to prepare a report on the present and future of commercial arbitration for the College of Commercial Arbitrators (CCA), a leading professional organization in the U.S. The resulting CCA/Straus Institute for Dispute Resolution Survey on Arbitration Practice polled experienced arbitrators on a wide range of subjects relating to their perceptions and practices as well as the arbitration field-at-large, including: a group profile of respondents (including age, gender, professional backgrounds, length and depth of experience, current professional status, and motivations for service); scope of arbitrator practice (including international cases; kinds of cases; cases as sole arbitrator; tripartite arbitration tribunals; appellate arbitration; ad hoc or non-administered processes; streamlined or “fast track” arbitration; “baseball” or final offer arbitration; “bracketed” awards; emergency arbitration and multi-disciplinary panels); pre-hearing management (including tailoring of arbitration procedures, handling of dispositive motions, management of discovery); management of arbitration hearings; deliberating and rendering arbitration awards; arbitration and settlement (including frequency of settlement experienced by arbitrators and concerns with settlement); experience in other intervention roles (including non-binding or advisory arbitration, early neutral evaluation, early case assessment, mediation and med-arb); perceptions of the roles played by provider organizations; trends affecting arbitration practice, and perceived differences between U.S. and international arbitration practice. The Survey was sent electronically to 212 individuals, all CCA Fellows, of whom 134 individuals (almost two-thirds) responded. The great majority of respondents claimed experience with both U.S. domestic and international arbitrations, and the Survey included questions pertaining to both.

This article, a detailed summary of the data gleaned from the CCA/Straus Institute Survey, is presented as a companion piece to Professor Stipanowich’s report, Reflections on the Present and Future of Commercial Arbitration: Challenges, Opportunities, Proposals. That article provides commentary and analysis of data presented here as well as and comparisons between U.S. and international arbitration practice.

Keywords: AAA, ADR, appeal, appellate, arbitration, arbitrator, business, commercial, conflict, corporate, corporation, counsel, cost, CPR, discovery, dispute, diversity, efficiency, empirical, gender, hearing