As you know from prior posts, arbitration is a creature of contract. This means if you want arbitration to resolve your disputes, then include a binding arbitration provision in your contract. If you don’t want to arbitrate disputes, then do NOT include a binding arbitration provision in your contract. But whether you arbitrate or litigate, you may not like the arbitrator or judge that presides over your case. And, you may not like the outcome or rulings made during the course of the dispute. This happens. However, this does NOT mean you can sue an arbitrator (or judge). There is arbitral immunity and if you were allowed to sue an arbitrator (or judge), it would open up Pandora’s box in a huge negative way. In a recent case, discussed here, a party sued an arbitrator. This was quickly disposed of on appeal because of arbitral immunity. Don’t be this party. If this concerns you, i.e., the person presiding over your case, then don’t agree to arbitrate, which does not have appellate rights. Agree to litigation and make it a dealmaker provision when negotiating your contracts.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.