Arbitration v. Litigation: The Right to Appeal and Other Misperceptions Fueling the Preference for a Judicial Forum


Alternatives to litigation have blossomed over the past quarter century and include a wide variety of practices. Among those alternatives is private arbitration where the parties submit their disputes to a neutral for binding resolution in a nonjudicial setting. Among the hallmarks of the arbitration process are its flexibility, privacy and expediency. Another cornerstone of arbitration is that it offers finality, which generally translates into less time and money spent on the dispute resolution process. Even though there are clear benefits associated with arbitration, it is not the preferred method for resolving civil disputes. To the contrary, there is a perception that attorneys prefer and will recommend litigation as the dispute resolution mechanism to be employed by their clients, and that one of the leading reasons for this preference is the availability of the right to take an appeal should they be unsatisfied with the outcome after trial.

In November 2005, approximately 400 business litigators in Southern California were surveyed to test the perception that attorneys generally prefer litigation over arbitration for the resolution of general civil disputes. The survey showed that approximately 87 percent of the responding attorneys do prefer litigation over arbitration and that one of the reasons for this preference is the availability of appellate review. The survey also asked attorneys to state any other reasons they might have for preferring litigation over arbitration. This question elicited a broad assortment of responses, which revealed bad experiences in arbitration; lack of confidence in arbitrators as decision makers; a higher level of comfort and confidence in the court system based on training and experience; and frustration with arbitrators deciding matters by “splitting the baby” and not following legal precedent.

This project concludes the there are misperceptions about both the perceived shortcomings associated with arbitration and the perceived attributes associated with the litigation process and seeks to demystify the arbitration process in an effort to present the arbitral forum as a more attractive alternative to litigation.


Commercial Law | Dispute Resolution and Arbitration | Law

Date of this Version

April 2006