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Lawyers Weekly looks at Arbitration Malaise

Toronto barrister and neutral Randy Pepper warns Canadian attorneys in an article in last week's Lawyers Weekly that they need to be aware of what caused "malaise" about arbitration in the United States.

Citing “Business Arbitration Can and Should be Improved in the United States,” by Kathy A. Bryan, CPR President and CEO, and CPR Senior Vice President Helena Tavares Erickson, a Spring/Summer 2008 article in the American Bar Association Section of Dispute Resolution's Dispute Resolution Magazine, Pepper described the debate at the CPR Institute’s annual meeting in New York last January.

The Lawyers Weekly article, quoting the Dispute Resolution Magazine piece, notes that at the CPR meeting "a number of prominent corporate general counsel expressed concern that commercial arbitration no longer offers sufficient benefits over litigation. They cited the failure of arbitrators to control the process so that lengthy hearings, discovery and a long wait for decisions have created a system that has all of the flaws and none of the benefits of litigation."

"Commercial arbitration still enjoys a good reputation" in Canada, writes Pepper. He concludes that "[c]ommercial arbitration in Canada is not broken and we do not need to head down the slippery slope taken by some of our American colleagues where arbitration turns into private conventional litigation. Business parties in Canada should avoid the tendency to adopt arbitration rules which simply import rigid civil procedure rules and instead adopt procedures that take full advantage of the benefits of arbitration over conventional litigation."

You can see the full Pepper article here.