In the arbitration process, discovery is crucial since it enables the concerned parties to get the facts from each other, which would help in their preparation for the hearing. However, the discovery process often ends up being expensive and time-consuming. Arbitration is also seen by litigants as a means for limiting discovery so that the costs of litigation could be brought down.
Arbitration Procedure Does Not Rule out Discovery
But experts tell that arbitration should not be seen as a solution for discovery-related issues. The flexibility of arbitration actually makes it necessary for the involved parties along with their attorneys to work on a means for defining discovery parameters, so that the discovery process would be less expensive and more efficient.
The discovery process in arbitration proceedings is generally designed to be an informal and minimal procedure, unlike that in traditional litigation. That’s because the goal of arbitration has been to make the process more economical and less stressful than litigation.
Early Agreement on Discovery Essential
In the state and federal courts a clear set of rules govern information that is discoverable – information that can be reasonably considered to lead to discovering “admissible evidence”. Case law also lends further direction on discovery.
But there is no such guidance in arbitration:
- Often, it is the concerned parties who have to mutually agree upon some rules regarding information exchange
- This must be done to keep the discovery process efficient and affordable.
- When such agreement is hard to reach, the parties sometimes move forward without an agreement, making the discovery process more contentious.
- In such cases, when disputes arise, they could be difficult to resolve unless the arbitrator intervenes, since there are no basic standards to rely on while negotiating the positions of the parties.
- Even after the intervention of the arbitrator there can be no predictability on how the arbitrator could resolve the dispute since there are no clear guidelines to rely upon.
While arbitration does provide the opportunity for customizing a discovery process that would work well for the litigants, the attorneys of either parties must work together pretty early in the process for choosing rules that both would abide by for providing the best structure for efficient and useful discovery.