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Post-litigation submission to arbitration - What are your thoughts?

Have you participated in an arbitration in which the agreement to arbitrate was made only after the parties had gone several rounds in court? If so, what were the considerations that convinced both sides to move their dispute to arbitration? Were they principally motivated by cost? By confidentiality? Was the court ill-suited to resolve the kind of dispute at issue?

Please provide your thoughts/comments below.

Comments (6)


A few times. Usually a court has ultimately decided the matter is subject to arbitration. Have one going on now. Scope just narrowed in light of recent Supreme Court decision on class claims.


In the cases I have seen, the court process was going to take too long, so the arbitration over specified issues was court ordered.

Judge Gerald Harris :

One can only speculate as to why counsel elect to change course. My best guess is that, in most instances, they learn that the case will not be reached for trial for years in a courtroom but can be heard and finally determined within months in an arbitration.


I have had only one case in which the parties lingered any significant time in court. In most cases, the court orders arbitration quickly.

Mark F Brancato:

I have had several matters where the parties were in litigation. In most instances, the courts eventually learned of the arbitration agreement and directed the parties to refer their disputes to arbitration. I have one pending matter in which one of the parties filed a declaratory judgment action, the other party claimed it wasn't served with a copy of the petition or notified of the action, and the court issued a ruling which could be dispositive in the matter before me.

I've seen these situations too. I thought the question related to situations in which the parties had no arbitration agreement but agreed to a post-dispute submission to arbitration only after litigating for awhile. I have not had that experience but it would be interesting if anyone has.

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