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The Pros and Cons of Arbitration
Editor's Note: Arbitration is the ever-evolving tool of choice for many organizations seeking to resolve disputes without resorting to more costly and time-consuming litigation. In this roundtable conversation, Barry Ostrager, Partner, Simpson Thacher & Bartlett; Pamela Corrie, General Counsel and Chief Risk Counsel, GE Capital; and Abraham D. Sofaer, Former Federal Judge, Chairman and Founder of Federal Arbitration, Inc. (FedArb), discuss trends, challenges, innovative new models and what the future holds for arbitration. Editor-in-Chief Adam Schlagman serves as the Moderator.
Adam Schlagman: How do decision-makers at major companies feel about using arbitration to resolve disputes? Is it more or less popular than it has been in the past?
Pamela Corrie: I think it is less popular than in the past. One key reason is the inability to appeal. That's something that is difficult to solve unless you deal with an arbitration where you already agree with the rules and there is some limited right to appeal. The finality of it scares people, especially in higher-risk litigation. They're unwilling to commit to a process that is less well-known than litigation and does not have the right to appeal. Next, there is still a perception that outcomes will just be a compromise based on the law as opposed to really applying the law. We work hard to debunk that myth because the data does not bear that out. The third reason is that our contracts don't provide for arbitration. We might approach the opposing party and ask if they would like to arbitrate a dispute, but very often there'll be opposition.
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