10 Compelling Reasons for Employment Arbitration: Eliminating Excessive Discovery

This fourth installment of the 10 Compelling Reasons for Employment Arbitration discusses the advantages of conducting discovery pursuant to an arbitration agreement as opposed to under typical court rules. Because arbitration is effectively “court by contract,” the parties have more control over discovery methods. In accordance with the United States Supreme Court’s recognition that a party who submits their claims to “resolution in an arbitral, rather than a judicial, forum … trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration…,” this control over discovery afforded by arbitration can significantly reduce costs and business disruptions as the case proceeds to resolution.

The Fourth Compelling Reason: Eliminating Excessive Discovery 

A number of advantages that arbitration affords the parties flow from their ability to choose, and communicate efficiently and often more informally with, the arbitrator. (See the second installment of this series: “The Parties Choose the Judge”). First, unless the parties’ arbitration agreement provides for discovery to be conducted under the specific state or federal court rules, the terms of discovery will be negotiated. As a result, the arbitrator has the opportunity to tailor the modes and amount of party discovery to the particular needs of the case.

Additionally, arbitrators generally deal with fewer matters at once as compared to the docket for a state or federal court judge. As a result, the parties in an arbitration will typically be able to communicate more frequently and more efficiently with the arbitrator to manage the discovery process. The arbitrator can often more easily get involved earlier in discovery disputes and limit gamesmanship and attendant delays. Similarly, if a discovery dispute cannot be resolved without a fully briefed motion, the arbitrator has more flexibility to direct the timing and length of submissions. In the same vein, an arbitrator can more efficiently bifurcate party discovery or choose to prioritize certain party discovery to serve the particular priorities of the case.

Discovery as to non-parties differs in arbitration as well. The Federal Arbitration Act (“FAA”) provides that:

The arbitrators … may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.

Notably, this subpoena power afforded to the arbitrators does not include the ability to compel pre-hearing depositions of non-parties. Moreover, many courts have held that arbitrators cannot compel any discovery from non-parties before the arbitration hearing is held.

Recognizing that streamlined discovery is one of the key advantages that arbitration holds over courts, the major arbitral platforms like the American Arbitration Association (AAA), JAMS Endispute, and Conflict Prevention and Resolution (CPR) have proactively taken measures to ensure that discovery remains more efficient in arbitration. To this end, these platforms have adopted rules for expedited resolution of cases, recommended limited numbers of depositions, and in the case of JAMS, issued “Recommended Arbitration Discovery Protocols.” As a result, choosing the right arbitral forum and applicable rules can also have a significant impact on the efficiency of discovery and ultimately, the resolution of the case.

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