Employment lawyers can argue about the pros and cons of arbitration versus court cases all day long, but the “right” answer from a strategic perspective, and real driver as applied in any specific case (we are, after all, advocates for our clients’ positions), always depends on the circumstances at issue and side you are on. Generally, there is a positive correlation for company lawyers, and negative correlation for plaintiff-side lawyers, between sensitivity/risk and the desire to have arbitration. That is, with sensitive/risky matters (primarily defined as involving bad publicity that can damage the company or its executives, large dollars and/or the uncertainty involved in a “run away jury”), companies want to arbitrate and plaintiffs do not. In contrast are more “mundane” matters (ie. no risk of bad publicity and small damages), where companies and plaintiffs align more often in wanting arbitration.(more…)