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Litigation & Trials

Rulemaking: We Need to Do Something about Arbitration

Nobody I know retires anymore. Everyone becomes an arbitrator-slash-mediator. That’s because no one tries cases in court anymore. Everyone is arbitrating and mediating everything, so there is a big market for arbitrators-slash-mediators. In my experience, neither arbitration nor mediation is wholly satisfying. Mediation is a settlement process, and most of the time your client either gives up too much or gets too little. I suppose that’s the definition of a settlement. But I can’t think of anything to do about mediation. Because it’s a settlement process, the parties set up a procedure that suits them. Arbitration is another matter, though. It is adjudicatory. It can be like real trial—it can be a real trial—and real trials are satisfying. But there is too often something different about arbitration trials.