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When Is a Reasoned Opinion Worthwhile?

First, realize that attorneys will almost always want a reasoned opinion and a transcript regardless of cost justification. In a non-scientific review of 500 arbitrations conducted with both reasoned opinions and transcripts, at a cost of approximately $4,000.00 more per arbitration for those two items, only three were appealed. (That is three arbitrations, not three percent of the arbitrations). The only reversal occurred because the arbitrator went and looked at the situs of the complaint without the parties - something that did not require either a transcript or a reasoned opinion for the reversal. The two hundred thousand dollars spent (outside of increased attorney time and fees) had their value outside of the legal process.

Second, realize that sometimes a reasoned opinion is useful for other purposes than for the possibility of an appeal - especially in situations were the issues repeat themselves and the party requesting the opinion is likely to win. There are often substantial values that occur outside the legal process. (In fact, some business analysts tend to claim that all value occurs outside the legal process).

Two good examples of outside values are found in employment law issues and in domain name contests.

In many employment/labor issues, management will win 90% to 95% of the time. While mediation is useful in reducing the number of complaints and improving workforce issues, arbitrations with reasoned opinions help to educate employees who would otherwise make complaints. (In the federal system, over half of the "unfair labor practices" complaints do not involve matters that are "unfair labor practices" though they may be unfair. Reasoned opinions help employees realize that making a complaint over those practices is not the way to address the issue).

In domain name contests the usual problem is that a group or entity has come up with what they think is an innovative way to work around the rules and infringe on a trademark. One solution to this is to make available for review past failures - a clear warning not to try to beat the process. The published reasoned opinions also provide for a body of reason for current arbitrators to draw on.

In both cases the value of a reasoned opinion is that it functions as would a published court's opinion to educate and create precedent.

Further, in cases where the arbitration is a part of an ongoing relationship (rather than the end of one), reasoned opinions can help the parties moderate and modify their relationship by understanding why the process had the results it had (and will likely have in the future).

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