Advantages and disadvantages:
Parties often seek to
resolve disputes through arbitration because of a number of perceived potential
advantages over judicial proceedings:
- In contrast to litigation, where one cannot
"choose the judge",
- Arbitration allows the parties to choose
their own tribunal. This is especially useful when the subject matter of
the dispute is highly technical: arbitrators with an appropriate degree of
expertise (for example, quantity surveying expertise, in the case of a
construction dispute, or expertise in commercial property law, in the case
of a real estate dispute can be chosen.
- Arbitration is often faster than litigation in
court.
- Arbitral proceedings and an arbitral award are
generally non-public, and can be made confidential
- In arbitral proceedings the language of
arbitration may be chosen, whereas in judicial proceedings the official
language of the country of the competent court will be automatically
applied.
- In most legal systems there are very limited
avenues for appeal of an arbitral award, which is sometimes an advantage
because it limits the duration of the dispute and any associated
liability.
Some of the disadvantages
include:
- An arbitration agreement are sometimes
contained in ancillary agreements or in small print in other agreements,
and consumers and employees often does not know in advance that they have
agreed to mandatory binding pre-dispute arbitration by purchasing a
product or taking a job.
- If the arbitration is mandatory and binding,
the parties waive their rights to access the courts and to have a judge or
jury decide the case.
- If the arbitrator or the arbitration forum
depends on the corporation for repeat business, there may be an inherent
incentive to rule against the consumer or employee
- There are very limited avenues for appeal,
which means that an erroneous decision cannot be easily overturned.
- Although usually thought to be speedier, when
there are multiple arbitrators on the panel, juggling their schedules for
hearing dates in long cases can lead to delays.
- In some legal systems, arbitration awards have
fewer enforcement options than judgments; although in the United States
arbitration awards are enforced in the same manner as court judgments and
have the same effect.
- Arbitrators are generally unable to enforce
interlocutory measures against a party, making it easier for a party to
take steps to avoid enforcement of member or a small group of members in
arbitration due to increasing legal fees, without explaining to the
members the adverse consequences of an unfavourable ruling.
- Discovery may be more limited in
arbitration or entirely non-existent.
- The potential to generate billings by attorneys
may be less than pursuing the dispute through trial.
- Unlike court judgments, arbitration awards
themselves are not directly enforceable. A party seeking to enforce an
arbitration award must resort to judicial remedies, called an action to
"confirm" an award