How Covid Has Left the Road to Arbitration Full of Potholes

Three years into the Covid-19 pandemic, the words “delayed due to Covid” still strike fear in the hearts of clients and attorneys across the country. For almost two years, many courts stopped almost all in-person hearings and trials, moving largely to virtual platforms. And while the wheels of justice continued to slowly turn, courts still face a yearslong backlog, especially for jury trials. As a result, judges are looking for other avenues to offload their dockets.

These delays in the courts may lead to more arbitration proceedings, but attorneys should beware of potential problems with this detour. Since the signing of The Federal Arbitration Act in 1925, the United States Supreme Court has continuously upheld arbitration agreements. But as most litigators know, the right to appeal an arbitration is extremely limited, with an arbitrator’s decision only being overturned for a manifest disregard of the law. It is not enough for an arbitrator to interpret the law incorrectly. Not only must the law be well-defined, explicit and clearly applicable, but the arbitrator must know the law and refuse to apply it. As such, almost all appeals from arbitration awards fail.