Privacy, Business and Law

In a court case, the parties have a right to conduct extensive, and expensive pre-trial procedures. Discovery, a process designed to uncover the facts about the case, usually includes depositions and written interrogatories that must be answered under oath. Also, the parties have the right to file pre-trial motions (such as demurrers and summary judgment motions) that are designed to winnow out legally insufficient and weak cases before trial. In contrast, in arbitration the arbitrator is in control of the process, which is tailored to the type of dispute and the amount in issue. In the average arbitration matter, pretrial discovery is very limited and motions are usually not permitted, unless both sides agree that they are necessary. The normal rules of evidence (such as the exclusion of hearsay, for example) do not apply in arbitrations. Unlike a court case, an arbitrator’s decision is essentially final. An agreement to arbitrate waives the right to trial by jury. There is no right to appeal or obtain any judicial review of the decision. Parties who are in position to negotiate the content of an arbitration clause in their contract can agree to change all of these rules. The most common changes are provisions for discovery and rights of appeal to the Superior Court for review of legal errors.