Anyone who litigates knows that arbitration clauses have become increasingly popular. Indeed, it is no longer uncommon to be forced to defend both a personal injury litigation in state court and a contractual litigation in an arbitral forum. A current New York Times series has begun to explore this issue and it sheds some interesting light on what the impetus for the clauses might be and the complications that result therefrom. It’s something for insurers to keep in mind since the potential for increased costs (and more damaging awards) seems high. To our mind, whatever flaws our jury system has, it’s better than an arbitration. To paraphrase Churchill, it’s the worst possible system, except for all the rest.

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