Many years ago, it was popular to look to Arbitration as a solution for many of the problems with civil litigation in our public courts. But over time attention was drawn to some inherent flaws in the Arbitration system and those flaws have been the subject of increasingly severe criticism. See en.m.wikipedia.org/wiki/Arbitration.
Fortunately, Comprehensive Adjudication has now emerged as a far better dispute resolution alternative than either of the other two options. Comprehensive Adjudication was specifically designed to resolve disputes with a more expertly analyzed decision in a fraction of the time and at a fraction of the cost required for Arbitration or public court litigation.
How is Dispute Resolution Through Comprehensive Adjudication Different?
Arbitration and public court litigation are both structured around each party to the dispute retaining separate legal counsel to advocate their clients’ interests via emphasis on different aspects of the facts and law. Each party’s attorneys review and analyze the same legal authorities and the same evidence. They each examine the same witnesses under oath. All that duplication is the cause of the vast bulk of the cost and delay required to obtain a final, enforceable decision. And the only justification for separate counsel essentially doing the same work is a false assumption that a judge, jury, or arbitration panel will better be able to discern the truth after hearing the factual spin and exaggerated assertions of multiple legal gladiators.
In Arbitration, the warring parties not only each pay for their separate legal counsel, they also must pay the cost of an expensive Arbitrator (or oftentimes a panel of three expensive Arbitrators) who do nothing other than listen to the presentations and arguments of all the attorneys and prepare a decision resolving the dispute.
Comprehensive Adjudication dispenses with all that unnecessary duplication, cost, and delay. Instead of each party retaining separate sets of legal counsel, and also paying for Arbitrators to merely listen to their arguments, the parties jointly interview, select and split the cost of a single, neutral Adjudicator who vigorously investigates the legal authorities and evidence supporting the positions of all parties to the dispute before swiftly deciding which party is legally entitled to prevail. The parties often insist on choosing a neutral Adjudicator that, otherwise, litigates cases in the specific field of law that is most relevant to the dispute. They get the experience of a lawyer possessing exceptional skills in uncovering the law and facts supporting each side to the dispute and the expertise of a neutral with experience in the relevant field of law. However, all those advantages are realized at a substantial savings because the functions of all the separate attorneys and the neutral who decides the dispute are combined into the responsibility of a single Adjudicator whose cost is divided by the parties.
How Does Comprehensive Adjudication Resolve Cases Better Than Arbitration?
Arbitration has been severely criticized because:
- Arbitration rules often disallow or severely limit pre-hearing discovery. Hence, the attorneys are hampered in their efforts to examine witnesses or obtain copies of relevant documents or other evidence. However, in a Comprehensive Adjudication proceeding, the Adjudicator is tasked with examining relevant witnesses and obtaining relevant evidence wherever they may be found and to the full extent necessary to prepare a fair and informed decision.
- Arbitration proceedings are often subject to extraordinary cost and delay because disputes over the enforceability of contractual arbitration clauses must be resolved in court, and on appeal, before the arbitration proceedings can even begin. Consumers and small businesses often allege that economic coercion was used to force agreement to one-sided arbitration clauses in non-negotiable form contracts. By contrast, no one is forced to participate in a Comprehensive Adjudication proceeding. Parties choose to participate because they believe it is in their best interest to obtain a more expertly analyzed legal decision at a fraction of the cost of Arbitration or public court litigation.
- The cost and duration of Arbitration proceedings is very difficult to control. To avoid criticism, Arbitrators generally hear any testimony or evidence the attorneys wish to present because the arbitration decision cannot be overturned based upon consideration of inadmissible evidence. Successive hearing dates are only scheduled when convenient for all Arbitrators, all counsel, and all parties. And the longer the arbitration hearing continues, the larger the fees that are charged by the arbitrators. On the other hand, the time and cost required to complete a thorough investigation in a Comprehensive Adjudication can be accurately estimated and capped in advance. The Adjudicator focuses on the testimony and evidence that are likely to be relevant and admissible. Frequent joint status conferences with the Adjudicator are held to ensure that the Adjudication process is on track.
- Professional Arbitrators are often suspected of bias because they are repeatedly selected to decide cases for the same businesses or industries. But bias is not an issue in a Comprehensive Adjudication proceeding. Unlike Arbitrators, most Adjudicators are skilled litigators who are trained to uncover the law and evidence supporting all sides to a dispute and they do not depend on repeated Adjudication work as their principal source of income.
- Arbitration decisions are generally final and cannot be overturned on appeal except in very limited circumstances. Even a legal error by the Arbitrator is generally not a legitimate basis for appeal. Comprehensive Adjudication decisions are also enforced under the authority of the Federal Arbitration Act. However, the parties have the option to decide at the outset to make the initial Adjudication decision final or make it appealable to a private appellate specialist who will swiftly decide whether any legal error occurred.
Comprehensive Adjudication is far better than Arbitration in nearly every respect.