Vanderbilt Journal of Transnational Law

First Page



At the outset, I owe an obligation to you and to my fellow panelists to reveal my true colors. Following the remarks of Mr. Aksen and Mr. Rhodes, you would be entitled to expect me to give some examples of how some distressed clients entered this wonderful world of arbitration, how the scales fell from their corporate eyes, and how their problems were solved. I am going to tell a bit of a story this afternoon. The focus of it is arbitration, but I should tell you it is not an arbitration that occurred. The story is of an arbitration process that was considered very seriously by clients in an industry unaccustomed to and distrustful of arbitration. These clients nevertheless gave very serious consideration to arbitration and indeed adopted a format for arbitrating some extremely important disputes. The only reason that the arbitration was not conducted was that the very existence of that arbitration system, and the possible resort to it as a means of solving these disputes, led to the settlements now being achieved.

I also have a personal point of view on this subject that should be revealed. It is a viewpoint colored by almost a quarter century of litigation experience. My view is that time should be devoted to avoiding formalized combat as well as to conducting it. Yet the avoidance of formalized combat, whether in the context of litigation or arbitration, cannot be successful without a thorough understanding of how that combat is likely to be conducted if attempts at negotiation, mediation, or a more satisfactory resolution fail. Efforts to avoid uneconomic, litigious warfare are not likely to be successful unless those involved in the decisions have a thorough understanding of the very processes they are trying to avoid.

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