Litigation v. Arbitration Q & A

[ ADR Suitability Questionnaire]
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Questions to Assess Litigation v. Arbitration

If your analysis leads to a conclusion against consensual ADR, a series of questions that permit choices between arbitration or adjudication follow. Arbitration is commonly used as a final step in a multistep ADR system of negotiation, mediation and arbitration.
See Features of Litigation v. Arbitration.

The (a) answers below indicate litigation; (b) answers indicate arbitration, unless one of these responses has such priority that it is determinative.

1. Does a party seek to secure a decision in a public setting?

a. yes
b. no

2. Does a party want to present the specter of a massive or unpredictable jury award?

a. yes
b. no

3. Is establishment of precedent or articulation of public policy an important goal for either party?

a. yes
b. no

4. Does either party seek public vindication of its reputation, position or claim?

a. yes
b. no

5. Is a vital corporate interest or "bet the company" case involved that requires the full panoply of procedural protection afforded by court and full appeal rights?

a. yes
b. no

6. Is there a need for continuing court supervision of the case or parties?

a. yes
b. no

7. Does delay associated with litigation significantly help one party?

a. yes
b. no

If either party will benefit from litigation delay due to holding the purse strings or other reasons, litigation may be preferred by that party.

8. Is the law on a determinative legal issue well settled in favor of one party allowing effective use of summary judgment or other dispositive motion?

a. yes
b. no

9. Does one party prefer to retain appeal rights?

a. yes
b. no

Arbitration is the preferred route when final closure of the dispute is sought by both parties despite the outcome.

10. Is this case linked to other future pending claims of significance to either party?

a. yes
b. no

11. Does the case require an understanding of complex or technical factual issues?

a. no
b. yes

12. Given what is at stake, are the transaction costs of pursuing litigation small when compared to what either side can realistically expect to recover or save?

a. yes
b. no

[ Features of Litigation v. Arbitration]
[ADR Suitability Questionnaire]
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