• May 6, 2013
Table, Photo by Haldane Martin

Table, Photo by Haldane Martin

In negotiations over the Vietnam War, as Clemson University Professor Edwin E. Moise‘s scholarship reminds us, diplomats spent several months arguing over the configuration of the tables to be used in any settlement talks.  Many see this as the height of absurdity. Prof. Moise, however, argues that this apparently trivial threshold issue was actually of great significance.

There is probably a similar apparent absurdity but possibly some underlying sense in two litigants arguing in U.S. District Court for several years as to whether their dispute should be decided in court or before an arbitrator.

Isn’t this like arguing whether one should use a Swiss franc or an Italian lira for a coin toss?  Aren’t the applicable laws the same in an arbitration as they are in civil litigation?  Do differences in procedural rules overshadow the fact that the dispute, in either forum, would presumably be substantively identical?

I have no clue.

But some amongst us, insurance companies, to be specific, have more data on court vs. arbitration awards than anyone else, I have to assume.  Insurance companies seem to believe there is a HUGE difference between the results in arbitrations vs. court proceedings.

Thus in the law battle between architects, Eckert/Wordell, and FJM Properties, which, really, is a battle between insurers, the fight has now raged for several years as to where the fight should be had.  FJM tried to extract itself from this mess back in September, 2012 to no avail.  It’s now trying again.  Eckert/Wordell is counter-punching.

One simply has to assume that these very sophisticated litigants have run the numbers and table shape for their dispute resolution is worth fighting over.

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