incredibly

cheap arena. Usually cost are limited to renting a small office,

administrative

costs, and the $500 to $1,000 per day for the arbitrator. If it is

a complex case, the case may need a three-person arbitration panel.

Almost never do arbitration cases demand a recorder, though one party

may hire one and split the cost with its opponent or, on rare

occasions,

shoulder it alone. "Interestingly," says Horowitz, "these

costs may prove higher than actual court costs on an actual per diem

basis. But just wait until the attorneys arrive."

Lawyers charge by the hour, and substantial time must be spent on

common litigation tasks, including motion preparation, evidence

discovery

time, depositions, document production, preparation of speeches, and

of course the longer days at trial. While counsel may — or not

— accompany disputing parties into arbitration, they appear simply

to aid in argument presentation.

Horowitz. "A really long case may drag on for a month. In court,

a decision could take years — then face appeal." One

fascinating

reason for the speed of arbitration is the attitude of the disputing

parties. Typically both parties, along with the arbitrator, are

seeking

compromise, not victory. Both the supplier and his shipper, for

example,

want to get the goods back on the road; this is where they intend

to make their money, not through a legal judgment.

"This is not to say that the arbitrator does not make judgments

which declare a winner and a loser," Horowitz hastens to point

out. "We are not mediators trying to negotiate a workable

settlement

that both parties agree to."

courtroom, by design, is adversarial; the judge aloof. Arbitration

proceeds with ties loosened through three basic steps: opening

statements,

presentation of facts, and the summary statements. If one party brings

forth 100 invoices, each with the same complaint, most likely the

arbitrator will unite both parties, and get them to distill them all

into a single complaint. No official rules of evidence apply. The

arbitration panel may recommend to both parties a swifter, more

organized

method of argument presentation. Any agreed-upon means that leads

a fair decision is considered justifiable.

"There’s no, well, sleazeballs at these hearings," notes

Horowitz.

Those who seek to con a quick victory usually head for the court room.

In all his years hearing cases, he has never been offered a bribe.

Of course, some of the battles do get downright nasty. "You walk

into a room," Horowitz smiles "and you see a mother and

daughter

snarling at each other across the table in a partnership dispute .

. . you just say to yourself `boy, this can’t get good.’"

For that reason, arbitrators must remain as Caesar’s wife and keep

all extraneous conversation to a minimum. Horowitz even avoids such

comments as "Say, how about those Thunders?" for fear of even

appearing partial.

arbitration

clause in your contract, your best bet is to contact AAA and visit

a hearing. Get the feel, determine the need for counsel, and consider

potential ways of arguing a case. Horowitz adds one tip for managers

steeped in this multi-media age: Don’t go wild with presentation.

Power point slides may impress the marketing boys, "but by in

large," he laughs, "we strongly prefer content over form."

Also, be aware that arbitration is totally final and binding, and

it uses the same muscle of enforcement as do the courts. While appeal

is technically possible, Horowitz has never seen a decision

overturned.

"I suppose if the panel were incoherent and visibly drooling on

their decision papers, the verdict could be set aside," he says.

But it just doesn’t happen. While even a superior court judge can

have his ruling appealed if a mistake of fact can be proven, the

arbitrator

is not so subject to review.

Too often we hear resurrected the tired and quivering maxim, "the

government should run itself like business." Perhaps the dilemma

with our courts’ system is that it indeed does — embodying all

the sluggishness, politics and human error found in both fields. Yet

maybe the middle ground of alternative dispute resolution (mediation

and arbitration) can bring us a little closer to the swift and simple

vision that the aged maxim had in mind. And this might make business,

with all its inherent problems, run a little smoother for all of us.

— Bart Jackson

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