Due to COVID-19, most courts across the country (both state and federal) are closed. In Massachusetts, the courts have remained open only for emergency matters.
Unfortunately litigation does not just stop. Business owners and individuals still have disputes that need to be resolved. Some contracts contain binding arbitration clauses that require both parties to arbitrate their respective claims. Even if your agreements do not contain such a clause, you may want to consider arbitrating your claims. Before the courts closed in response to COVID-19, a lawsuit filed in Massachusetts Superior Court could take at least three years to reach trial. That time will likely extend even further due to COVID-19. Arbitration offers an attractive alternative both to business owners and to individuals who want to resolve their disputes more quickly. Set forth below are the advantages and disadvantages of arbitration:
- Arbitration lacks the formality of a court proceeding. Arbitration lacks the formality of court proceedings. There is no judge sitting on a bench in a black robe. The time standards are not prescribed by the court but rather are agreed to by the participants in the arbitration. There is much less motion practice in arbitrations and a jury trial is obviously not an option.
- Arbitrations take less time. Traditionally, arbitrations conclude within a year. The main reason for this is because the parties to the arbitration privately compensate the chosen arbitrator. In addition, the goal of arbitration is to swiftly resolve disputes, not to follow a strict court schedule. Moreover, arbitration largely eliminates the appeals process. An unhappy litigate can appeal an arbitrator’s decision only on very limited grounds:
- Where the award was procured by corruption, fraud, or undue means;
- Where there was evident partiality or corruption in the arbitrators, or either of them;
- Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
- Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made (M.G.L. c. 253, § 12).
In a court proceeding, discovery is governed by the particular state’s rules of civil procedure. In Massachusetts, as in other states, the civil procedure rules allow parties to obtain answers to written questions or “interrogatories,” and request the production of documents. In addition, unlike arbitration, the civil procedure rules allow parties to take depositions. Although depositions are not common in arbitrations and are not expressly prohibited, the trend is toward allowing a limited number of depositions that will assist the parties in the efficient resolution of the issues in dispute. If the dispute requires expert testimony, to the extent possible, it is advisable for the parties to work together to keep the costs of expert discovery down. The parties should agree to a timetable for the exchange of an expert report or other disclosures and depositions if necessary.
What is the proper forum to resolve your dispute? If you are concerned about costs, want your dispute resolved quickly, and desire a more flexible process, we would suggest arbitration as WCFDOCS\7100\0000\1375948.v1-6/26/20 a viable alternative to court. The attorneys and Wilchins Cosentino & Novins LLP routinely handle arbitrations across a wide spectrum of issues including breach of contract, breach of fiduciary duty, negligence, professional malpractice, construction and real estate related matters. Please feel free to contact us at 781-235-5500 or firstname.lastname@example.org.