The Federal Judicial Center has released a whitepaper entitled In Their Words: Attorney Views About Costs and Procedures in Federal Civil Litigation, that reports on interviews with 35 attorneys exploring the costs of federal civil litigation. The report contains many predictable conclusions (costs increase with higher stakes; IP litigation is really expensive) as well as some interesting nuggets. Here’s one from an employment plaintiff’s attorney of interest for the ADR community:

One attorney reported that he spent more time on employment cases that involved the Federal Arbitration Act than on other employment cases. In those cases, the attorney sometimes has to challenge the client’s alleged waiver of the right to sue in addition to litigating the discrimination claims. In arbitration, “the discovery fights are much worse than in ordinary litigation because defendants think they can get away with not turning things over.” In that attorney’s experience, “arbitrators never grant summary judgment because they have an economic interest in proceeding to a hearing.”

That’s one attorney’s perspective, but it is a potentially important perspective because the argument for allowing arbitration in employment discrimination cases is typically rooted in the difficulty of pursuing smaller discrimination cases in federal court. If costs are actually higher in cases covered by an arbitration clause, that argument loses some of its force (it does not lose all of its force because of the possibility that arbitrators award damages to plaintiffs more readily than district courts do).