However, many states have arbitration statutes which can be invoked to permit discovery in arbitration. Also, parties can draft arbitration agreements so as to define the extent of pre-trial discovery that will be permitted. Generally speaking, discovery is freely available in arbitration so long as the discovery is not abusive. Most arbitrators will allow key witnesses to be deposed in advance of the arbitration hearing, and will require opposing parties to make available copies of documents to their adversaries. Parties can confer upon arbitrators the same powers as courts to issue orders compelling discovery and protective orders.
Arbitration scores a big advantage in scheduling.
Courts schedule matters without regard to the schedule of the litigants. In contrast, arbitration hearings are always scheduled with a view toward the convenience of the participants. Courts have substantial backlogs. Cases may take as long as one or two years to come to trial, and appeals by extend the dispute even longer. In contrast, most arbitration hearings take place and are concluded within six months after they are invoked.