Perhaps stalwarts of arbitration would prefer the issue put as a question: Should motion practice be part of arbitrations? Certainly, some would argue that the answer to the question should be "no," fearing that allowing some type of motion practice in arbitrations would be yet another sign that arbitrations have morphed into litigation. But the reality is that discovery motions and dispositive motions are becoming a staple in more complex arbitrations; and they are being filed in even less complex arbitrations as well. When are motions appropriate, and are they advancing or impeding the efficiency and speed of arbitrations?
Motion Practice in General
Case law in both federal and state jurisdictions have lauded arbitration as a dispute resolution process that is more expeditious and less expensive than litigation. The universal concept that has emerged from case law is that efficiency, reduced delay, and cost effectiveness are the historical attributes for arbitration. Yet, some have challenged whether these traditional attributes of arbitration have been weakened by the expansion of discovery in arbitration—leading some to complain that arbitration has morphed into "arbigation." But as arbitration has addressed more complex disputes, more sophisticated discovery beyond exchanging documents was bound to follow. Even though efficiency and the speed of resolution may be sacrificed in part, the heart of the process is still intended to reach a fair result. Allowing parties to engage in more discovery than a simple document exchange makes sense.