USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
in litigation. Disputes are resolved faster in arbitration than in traditional litigation, which benefits parties and overburdened courts alike. 3.4 Disadvantages of Arbitration Arbitration can have a few disadvantages. Arbitral decisions are generally final and binding, such that courts only overturn an arbitrator’s decision in narrow circumstances. Refer to the Trends and Developments article of the Chambers Dispute Resolution 2026 Guide for the USA (nationally) for a more in-depth discussion on this point. Moreover, arbitration can present high upfront costs, posing a barrier to access for parties who might otherwise want to resort to ADR. This is because parties have to split the arbitrator’s rate up-front, subject to any applicable fee- and cost- shifting provisions. Initial filing fees in litigation are less expensive and the parties do not have to pay for the court’s time spent on the case. 3.5 Arbitral Institutions Aside from state-specific annexed programmes, the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS) arbitral institutions are popular in the Untied States. Other international arbitral institutions are popular as well, including the International Chamber of Commerce and the International Centre for Dispute Resolution, particularly in cross-border matters. 3.6 Length of Proceedings Arbitration is preferable over litigation because it can resolve a dispute faster. There are several factors informing the speed of arbitral proceedings, including but not limited to (i) whether the arbitration is binding, (ii) how many parties are in the dispute, and (iii) which arbitral body’s rules govern the proceeding. The AAA, for example, advertises that business-to-business disputes take a median time of 18.7 months while employment cases take a median time of 17 months. 3.7 Regulation of Arbitration The United States has various key laws relating to arbi- tration. Specific state jurisdictions may, for example, have court-annexed arbitration programmes. (See, eg, Nevada Rules Governing Alternative Dispute Reso- lution, General Provisions, Rule 2 (a).) Congress has enacted the Federal Arbitration Act (FAA), which gen-
erally applies to arbitration agreements and provisions in contracts involving interstate commerce. (9 USC, Sections 1–16.) Section 2 specifically provides that, where the FAA governs, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.” Federal agencies in the United States, by way of the Administrative Dispute Resolution Act, can use arbitration and other ADR techniques to resolve disputes. (5 USC, Sections 571–84.) 3.8 Court Powers Federal and state statutes, as well as common law, give courts in the United States powers to support (and in fact even compel) arbitration. The Federal Arbi- tration Act and each state’s arbitration law provide for limited grounds for when a court can vacate or modify an arbitration award. (See 9 USC, Sections 10–11.) As a general matter of common law in the United States, arbitration is mandated so long as the underlying agreement is valid and enforceable by virtue of com- mon law principles. Finally, as a matter of state law, many states in the United States have compulsory arbitration programmes in cases with relatively smaller Courts can intervene in arbitration where a party initi- ates a lawsuit despite the fact that there is an arbitra- tion clause or agreement that governs the dispute. In that instance, the defending party will have to move to compel arbitration. The resulting motion practice centres primarily on the scope and enforceability of the arbitration provision or agreement. Courts can also intervene to enforce arbitral awards, vacate arbi- tral awards altogether, or modify or correct arbitral awards. Finally, courts can intervene in limited agreed- upon disputes, such as when the governing agree- ment permits the parties to seek preliminary injunctive relief. 3.10 Relief amounts in controversy. 3.9 Court Intervention Interim relief available in arbitration mirrors that avail- able in traditional litigation. This includes preliminary injunctions, writs of attachment, receiver appoint- ments, or orders preserving evidence. With prelimi- nary injunctions, for instance, arbitrating parties would seek preliminary injunctive relief from a court and later
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