ABA Section of Business Law

Arbitration and the agreement

Arbitrations are often chosen over traditional litigation because the parties seek to avoid traditional litigation discovery. Because an arbitration is a contracted proceeding, your right to take discovery at all will depend in the first instance on the terms of your agreement. Many arbitration agreements specify the extent of permissible discovery, or incorporate some established institution’s rules, which will then govern the extent of discovery in the arbitration.

Absent some provision in the written agreement or in the rules, you will need to negotiate the parameters of the arbitration’s discovery with the other parties. If you are unable to reach an agreement, then the arbitrators should be empowered to determine the scope of discovery for the arbitration.

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