After 36 years as a state court trial and appellate judge, including eight in the commercial division and 21 managing mass torts, I anticipated a seamless transition to becoming a neutral. After all, I had tried, conferenced and settled thousands of cases. To be sure, I realized I would lack the hammer of the imminent trial alternative, so I took several courses in mediation, some of which involved role playing. But ultimately I thought it would just come naturally. After three years as a neutral, I can report that while my judicial skills prepared me in some ways, they presented obstacles in other ways.
Let me start with the role of arbitrator. I was told that arbitration is faster, more efficient and less costly than litigation. Overall, that is true. But often lawyers who litigate also arbitrate. So, when I’m presiding over preliminary conferences, particularly in commercial cases, I often hear about extensive document discovery requests, issues concerning obtaining electronic discovery, claims that five or six depositions are necessary and that the parties need at least 10 months to prepare for a hearing. Sounds awfully familiar! I think: How can I reconcile these demands with the cost-efficiency that arbitration advocates tout?
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