An important development over the past decade has been the growing acceptance of binding arbitration, particularly with the recent Supreme Court Decision Epic Systems Corp. v. Lewis, 137 pp. Ct. 809 (2017). Judicial facilitation of the resolution of private disputes through arbitration has been legal in both state and federal courts since the passage of the Federal Arbitration Act in 1926. The recent increase in the popularity of arbitration has led to the inclusion of arbitration provisions in pre-litigation contracts, as well as the presentation of the postal incident to arbitration. Although historically rooted in the field of labour relations, the use of arbitration has rapidly expanded to the point that arbitration is still at least a consideration for the parties and/or opponents of the trial. The American Arbitration Association (AAA) reported that the total number of arbitration applications increased by 26% between 2014 and 2015. Since the 1980s, the trend of annual increases in enrolments has been repeated. The increase in arbitration applications shows that the parties and their lawyers find that arbitration is a viable and often preferred alternative to civil trials.
Pro: Since the rules of evidence do not apply in an arbitration procedure, it is less time-consuming and inexpensive to present a case in an arbitration proceeding than in a court proceeding. Arbitration is a method of resolving disputes without going to court. Sometimes a lawyer will recommend an arbitration procedure to a client as the best way to resolve a claim. As part of the arbitration process, the dispute is referred to a third party (the arbitrator) who will resolve the dispute after hearing a submission from both parties. The presentation can only be documents presented to the arbitrator on each side. More often, each page, in addition to the documents submitted, will make oral arguments personally. As a general rule, each page will have a lawyer to make oral argument for it. Sometimes there are witnesses testifying. Con: A party in arbitration may be confronted with the correspondence and sworn assurance of third-party witnesses who are not available for cross-examination.
Similarly, a party may be confronted, in the course of an arbitration proceeding, with testimony that is not aware of the purpose of its testimony. In the context of a court proceeding, the damage must be proven with sufficient certainty; in arbitration proceedings, evidence of injury may be based on speculation and presumption. Another advantage of arbitration is the flexibility that often allows the party to be housed more comfortably than in public courts. At the same time, however, it is important to be precise and compensate for the pros and cons of the two dispute resolution mechanisms – to compare apples to apples and not oranges. In some judicial systems, there may be fewer problems with animated prison and civilian calendars than in others, and there may indeed be a quicker resolution of the dispute if legal action were taken.