Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

Latest Litigation vs. Arbitration Posts
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New Survey Dispels Common Myths About Arbitration

By Liz Kramer | November 20 2014

Litigation vs. Arbitration Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award?  That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law. The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine...

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California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements

By Liz Kramer | June 25 2014

Class Arbitration, Litigation vs. Arbitration This week the Supreme Court of California held that the FAA preempts California's 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements.  Iskanian v. CLS Transp. Los Angeles, LLC, __ P.3d__, 2014 WL 2808963 (Cal. June 23, 2014).  However, asserting its...

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First Things First: There Must Be An Arbitration Agreement In Order To Compel Arbitration

By Liz Kramer | June 10 2014

Litigation vs. Arbitration, Validity of Arbitration Agreement Two courts recently refused to compel arbitration because the defendants could not prove that the parties had entered into an arbitration agreement at all.  Therefore, the musical accompaniment to this post is "Do Re Mi" from The Sound of Music.  "Let's start at the very beginning, a very good place to start....

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Think You Have A Chance Of Vacating Your Arbitration Award? Read this.

By Liz Kramer | February 25 2014

Appealing Arbitration Decisions, Litigation vs. Arbitration Just how hard is it to vacate an arbitration award?  The Sixth Circuit recently held that even if the arbitrator reached a result directly contrary to federal precedent, the arbitration award would be upheld.  And the Tenth Circuit found that even if the arbitrator based his award on an agreement that does not...

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No Federal Presumption of Arbitrability Until Court Finds Valid Arbitration Agreement

By Liz Kramer | February 12 2014

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply?  The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass...

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FAA Preempts More State Arbitration Law

By Liz Kramer | February 5 2014

Litigation vs. Arbitration, Validity of Arbitration Agreement The Tenth Circuit ruled last week that arbitration case law from New Mexico is preempted by the FAA.  This decision calls into question whether states can find arbitration agreements unconscionable simply for being unilateral, i.e. one party is bound to arbitrate its claims while the other party is free to litigate...

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CFPB’s Preliminary Report: Financial Consumers Can Only Avoid Arbitration By Using A Credit Union

By Liz Kramer | January 7 2014

Arbitration Rules/Procedures, Litigation vs. Arbitration Say it's twenty degrees below zero outside, and you'd already seen boiling water turn into "snow" immediately upon making contact with the air, what would you do next?  Assuming you were all caught up on your Words With Friends games, you would read the 168-page initial report of the Consumer Finance Protection...

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Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

By Liz Kramer | November 8 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a "gateway" issue of arbitrability that defaults to courts.  This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court...

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3d Circuit Says Delaware Can’t Have Secret Arbitrations By Judges

By Liz Kramer | October 28 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration The Third Circuit ruled last week that Delaware's Chancery Court could not offer its judges' services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. In 2009, the Delaware courts decided to provide arbitration.  The state amended its laws to create an arbitration...

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Court Affirms Arbitrator’s Decision to Preclude Party From Defending Against Claim as Sanction for Fabricating Evidence

By Liz Kramer | July 23 2013

Appealing Arbitration Decisions, Litigation vs. Arbitration In a decision that confirms arbitrators' broad discretion to not only fashion remedies, but also fashion sanctions, the Minnesota Court of Appeals held that an arbitrator did not exceed his power by issuing a severe sanction: denying one party the right to defend against certain claims after finding that party had...

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