Originally from Alternatives to the High Cost of Litigation

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“Go to court? Or not to court?” Those are the questions, with apologies to the late great bard.

This is an unusual inquiry coming from a former U.S. District Court judge who retired from the bench just last year. But this author would be the first to say that courts can learn a lot from processes developed by arbitrators.

As just one example, litigation discovery in the U.S. is too cumbersome, burdensome and expensive. But when you need interim emergency measures to protect your client’s interests in a matter before an arbitration panel can be convened, your first decision may be the most critical to protecting your client’s interests.

In a rapidly evolving matter where, for example, speed is critical to prevent dissipation or removal of assets, are you better off going to court or seeking an emergency arbitral ruling?

A decade ago, the answer would have been clear: seek an emergency court order. Now, however, many arbitral institutions and rules can be quite nimble in emergent situations.