Pretrial discovery is widely understood to be the most expensive phase of litigation, often more so than trial. That cost factor often drives many contracting parties—whether in the commercial, employment, or consumer context—to opt for arbitration clauses to resolve future disputes. In addition to wanting other perceived benefits of arbitrating such as speed and finality, parties expect discovery in arbitration to be more limited and, therefore, to get them more quickly to the end result and at less cost than in litigation.
In reality, such expectations about discovery in arbitration are not always met. Nor are such expectations always consistent with the desires of counsel and their clients once a dispute arises. At that point in time, it is not uncommon for the parties to want the same broad range of discovery that is provided as a matter of course in litigation. But such broad discovery is not available as a matter of right in arbitration. Especially in cases with complex issues or high dollars at stake, the restrictions on discovery in arbitration can make the parties and attorneys feel hamstrung in their ability to prove their claim or defense.