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Why consider arbitration instead of court litigation
August 20, 2020
Why consider arbitration instead of court litigation
            If you have a dispute there a two options for final determination, a lawsuit in court or arbitration.  Note that I stated “final determination”; that would exclude mediation, which is having a third party intervene with the parties to try and work out a resolution of a dispute, but no resolution can be imposed on either party without consent.
            A lawsuit or arbitration work differently; you get a final decision whether you like it or not.  There are pros and cons to either proceeding.  Here are some:
  *  you get a judge or perhaps jury who is supposed to be impartial and unbiased
  *  you can appeal a judge’s decision to a higher court
  *  the decision becomes a judgment that can be enforced
  *  some jurisdictions are terrible backed up and a lawsuit could take years
  *  particularly for collection cases a delay in  proceedings can mean that the ultimate judgment will not be collectible; the subscriber will be long gone before you get your judgment
  *  in some jurisdictions the Judges insist on multiple court appearances which can become very costly
  *  you get a lawyer, retired judge or other person supposedly knowledgeable in the subject matter of your dispute who is supposed to be impartial and unbiased
  *  proceedings are easier to initiate and prosecute
  *  more informal, often conducted by phone or video [even when there is no pandemic]
  *  proceedings are typically relatively quick, resolved within two to three months from initiation.  Faster resolution increases chance of recovery
  *  there is no appeal process; the arbitrator’s decision is final unless completely irrational, in which event a judge can set it aside
  *  the arbitration award, if not paid or complied with, has to be “confirmed” by a judge in court.  This requires yet another proceeding, in court, though this is not a full lawsuit on the issues, but a limited proceeding to determine that the arbitration was properly conducted
  *  while all courts universally favor arbitration, some states and some judges have their own rules and a challenge to arbitration can delay or prevent the arbitration proceeding
  *  you have to pay for arbitration, the filing fee and the arbitrator fees.  This can be costly and some arbitration can take almost as long as court cases.
            Will you do better or worse in arbitration?  The answer is that you should do the same in either forum; win when you should; lose when you should.  The arbitration proceeding should be much faster and most cases get resolved either before or during the arbitration, so a court proceeding to confirm the award is not necessary.  The chance of resolving your matter in months, rather than years, makes arbitration the better choice most of the time.
            The Standard Form Agreements all have an arbitration provision and when we handle cases for you we generally will select arbitration as the way to proceed.  This, by the way, sometimes throws a subscriber [defendant or, in arbitration, a respondent] for a loop because the “I’ll see you in court [years from now]” changes fast when the subscriber is served and within less than a month is required to deal with the arbitration proceeding or face a default award.  Faster resolution favors recovery.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301