The National Arbitration Forum Blog

Gloria Padilla, a columnist at the San Antonio Express-News recently wrote about the changing nature of resolving disputes in this article.

The article discusses the decline in civil jury trials and highlights how this decline negatively affects lawyers' business and worries them that the Seventh Amendment (right to trial by jury) could be affected (and even disappear). Padilla makes the point that we are seeing a decline for several reasons: the use of alternative dispute resolution (ADR) and because trials are expensive. (David Schucosky on the Jurist makes a similiar statement). As for ADR, Padilla specifically mentioned contractual arbitration.

In actuality, however, it is incorrect to identify contractual arbitration as a source of the decline in jury trials. A report presented to the American Bar Association last year entitled "The Vanishing Trial" noted that it was not possible to identify contractual arbitration as a source of a decline in jury trials.

The fact is: while jury trials are becoming more rare, court filings over contractual disputes have risen. Since contractual disputes where the parties have agreed to arbitration are by definition not filed in court, contractual arbitration (if it was the culprit) should reduce the number or cases being filed in court. But, this is not the case. So, the rise in court filings over disputed contracts suggests that contractual arbitration is certainly not the source of a decline in trials.

The reality is that over the years, going to trial has become more and more expensive in terms of both time and money. Only 2-3 % of cases ever go to trial. And any litigator will tell you that more and more judges are using both formal and informal settlement techniques the result of which is, of course, fewer jury trials.

The high costs of litigation are what have driven litigators on both sides of the bar to seek out more effective means of resolving their cases, and most litigators choose some form of mediation or arbitration. This was demonstrated in a 2003 survey conducted by the ABA Section of Litigation. The survey revealed that 78 % of trial attorneys said that arbitration was faster than court.

This is not to say that the U.S. court system is not vitally important, because it is. And upholding the United States Constitution is of unparalleled importance. However, because of rising costs and the lengthy process, we, as legal professionals, simply have to start thinking about how to do things differently to best meet the needs of our clients and to better resolve disputes, whether that be through a trial or through ADR.

Every year, millions of cases are filed in the courts across the country putting a very taxing burden on a system that ultimately has a hard time dealing with the volume. Turning to ADR provides solutions for parties who do not have the luxuries to wait in the very long line to trial.

--Curtis Brown, General Counsel, NAF