Limiting Discovery in Arbitration: Should You Write Discovery Out of the Deal?


One of the benefits of arbitration, which is contract-based dispute resolution, is that almost all of the rules can be tailored to the will of the parties. This means that parties can limit -- or entirely banish -- discovery. Limiting discovery, of course, can reduce the cost of resolving a dispute while considering if the savings come at an unacceptable cost? This article examines different approaches to dealing with discovery practice in the agreement to arbitrate, including if parties should include limitations on discovery in their agreement to arbitrate, and, in the alternative, if there are times when a party should affirmatively stake out a right to discovery in the arbitration clause.