by Anna Engelhard-Barfield and Christian Thier
excerpted from ABA Section of International Law Newsletter, Issue 7, September 2013
This question was posed to a panel consisting of two private practice attorneys, an in-house counsel, and an ICC representative at the recent ABA/DAV Confer- ence in Frankfurt, Germany, June 3, 2013.
Criticism of commercial arbitration has increasingly grown due to long cycle time/duration and high costs. What was originally considered a beneficial alternative to slow and expensive litigation, is now often questioned and criticized as more of the same: a long and expensive process, extensive pleadings, voluminous written statement statements, multiple battling experts, high arbitration fees, high expert fees, high attorney fees - and in the end, a ruling which cannot be appealed.
Most of the cost and delay seem to be caused by discovery, motions and large panels of experts. Parties have started looking for alternative means of dispute resolution and are turning to mediation; the ADR vehicle which has taken a reluctant root in Germany and other European countries. Recent European surveys indicate that between 1997 and 2011, Fortune 1000 companies increased their participation in mediation and mediation-arbitration.
Status of ADR and Mediation in Europe
There is still a vast difference between the US, UK, and Europe when it comes to ADR and mediation. At the annual ICC Mediation Conference in 2012, one contribution was entitled, "The insidetrack -how blue chips areusing ADR". GCs and Heads of Litigation complained about having to overcome hurdles before European parties would agree to mediation. Some of the quotes from this panel included “ …mediation was considered not acceptable; not part of the culture”; "they would run into a European view that any process that may have had its genesis in the United States isprobably not very good" (Head of Worldwide Litigation, Multinational); “it was sad that some lawyers appeared more interested in fees than settling cases" (Head of UK Litigation, Financial Services). Interestingly, the same litigator stated they "always involve external lawyers.... in mediation and they are heavily involved in the strategy, the tactics and the actual delivery of what happens at the mediation".
Dr. Alexander Steinbrecher, the in-house counsel for Bombardier stated at the ICC Conference, "the only people who benefit from litigation are outside counsel"; and, "external counsel never recommends mediation". Dr. Steinbrecher made a case for businesses resolving business problems as business problems: a commercial mindset to avoid escalation of the conflict, realistic cooperation with external counsel, and a clear provisioning for risks and opportunities. Dr. Steinbrecher conceded that mediation is not magic and does not work for all disputes, but that it may bridge the gap between negotiation and litigation - possibly more effectively than arbitration.
The ICC reports a mediation settlement rate of 80 % when a first meeting of the parties with a mediator took place prior to the mediation conference. Average cost is quoted as $20,000.00 with an average duration of four (4) months. Multi-party mediations are common. The challenges to mediation were described by the ICC representative as follows:
There is no question that arbitration is expensive and requires significant amounts of work by the participants. In a 200+ million Euro arbitration case, the defendants had spent millions of Euros in attorney fees, expert fees, and ancillary expenses before the hearing had even begun. There were several rounds of pleadings, multiple experts and thousands of document pages.
In a recent US-German case, the claimant wished arbitration regarding an amount of $130,000. The claimant had to pay $30,000 in initial filing and attorney fees before the respondent even received the complaint. The other party refused to pay their share of the fees, and the arbitrator demanded that the claimant make a payment of ca. $15,000 before he would even start considering the matter. Not surprisingly, the claimant decided to settle for $5,000. Like litigation, arbitration requires payment of proceeding filing costs. Additionally, arbitration proceeding filing costs are usually much higher than intiating a court proceeding, and usually include a significant deposit towards the arbitrator and arbitration panel fees. If one party fails to pay its share, usually the respondent, the claimant is often forced to advance all arbitration costs and deposits if the claimant wishes to proceed. These factors can clearly make arbitration a much more expensive proposition than traditional litigation.
Improvements of Arbitration procedures
The longer arbitration takes, the more it cost. However, some improvements have been implemented. Recent practice developments have allowed for optional expedited procedures (JAMS, 2010) and increased arbitration management by agreement of the parties. Revisions to the ICC and Swiss rules on arbitration took effect in 2012; each with the primary goal of improving the efficiency of arbitration proceedings in terms of time and cost.
Parties can agree on limiting discovery (as to how much and what kinds), how many depositions should be allowed, how long the hearing should last, how much time should be spent on witness testimony (direct and cross), whether a court reporter should be retained (useful for post-hearing briefs), and how many experts will be allowed. For example, the parties could agree to jointly retain an expert for a particular technical issue, or to utilize an "expert witness panel" (simultaneous testimony of experts who can comment on each other's opinion).
It seems that the most important step towards limiting arbitration cost exposure is cooperation between the parties and the arbitrators and an early and comprehensive preliminary conference to establish an overall time schedule with specific provisions for discovery and an early exchange of witness lists and exhibits. Arbitration is not litigation. Unnecessarily disputing facts and documents, throwing reams of paper at the other side, insinuating low-brow motives and false accusations, making un-reasonable demands and utilizing other litigation tactics have no place in arbitration or mediation - the alternative dispute resolution vehicles.
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