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December 29, 2017

Overcoming Arbitration Challenges

By Erika C. Birg

North Florida Chapter of the Association of Corporate Counsel

Reprinted with permission from the North Florida Chapter of the Association of Corporate Counsel

Arbitration often gets a bad rap among litigators. Courts love it. Business likes it. And it is not going away any time soon. But there are reasons that litigators shy away from arbitration, reasons that can be addressed before the dispute arises.

It may seem trite to repeat, but it is the bedrock principle to remember: “arbitration is a creature of contract.” Advanced Bodycare Sols., LLC v. Thione Intern., Inc., 524 F.3d 1235, 1238 (11th Cir. 2008). Without an agreement among all parties to arbitrate, disputes are left to the court system to resolve. But, if the parties agree, then they can design the arbitration process to suit their needs. This provides flexibility, but it is challenging to foretell the future on what type of dispute the parties are likely to have and what will be at stake. Talking to the business people in advance can help the drafting lawyer decide whether arbitration or litigation is likely the best place to resolve the dispute.