Here is a link to a recent column in the New York Law Journal explaining that arbitrators are less prone to grant a dispositive motion than judges, suggesting that disputants are more likely to get to a hearing phase in arbitration than in court. Given the Supreme Court’s recent tightening of the pleading and summary judgment standards, arbitration offers a forum in which a party is more likely to have an opportunity to present his or her “story” to a decision-maker. Since having an opportunity to be heard is an essential component of procedural justice, this column supports the hypothesis that arbitration offers more procedural justice than court.
Apparently the article is available only to subscribers.
The reason that arbitrators don’t grant dispositive motions is that arbitrators get paid by the hour, whereas judges in the public system are paid a salary. Arbitrators have no incentive to avoid a hearing, and judges have every incentive to avoid a trial. I don’t agree that the litigants generally prefer a hearing. I think many litigants prefer a resolution without a hearing.