Arbitration can be an attractive option for litigants desiring to resolve commercial disputes quickly, privately, and cost-effectively. However, arbitration requires parties to sacrifice certain rights typically afforded in state or federal court litigation. Among the most significant is discovery.1 In arbitration, parties are constrained by rules permitting only narrow document discovery and limited, if any, depositions or non-party discovery. These limitations can threaten parties’ ability to prove their positions. We have suggested elsewhere2 that, in drafting arbitration agreements, parties should deal with discovery issues at a time when they are in an agreeing mood. Where this has not occurred, counsel must take a targeted approach to arbitration discovery. The focus must be on obtaining evidence necessary to prove key facts at a hearing, with recognition that many of the evidence-gathering tools familiar to civil litigators may be unavailable.
Applicable Rules
While rules vary among arbitration providers, the rules of the American Arbitration Association (AAA) and JAMS are illustrative.
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