Arbitration, of course, is well known in the United States. What is not generally known is that there is an alternative to arbitration. The law recognizes two well developed and distinct types of alternative dispute resolution proceedings each of which lead to a final and binding result: (i) arbitration and (ii) expert determination. Expert determination is a powerful alternative to arbitration which, when properly understood, can be preferable to arbitration for certain types of disputes. Expert determinations are governed by their own body of law that is separate, distinct, and materially different from the law of arbitration.
The lack of present awareness of the law of expert determination in New York is particularly surprising. The New York Legislature over 50 years ago enacted specific legislation governing expert determinations as a form of dispute resolution separate from arbitration. This legislation, which has become virtually unknown among contemporary practitioners, is found in CPLR Article 76 (as opposed to Article 75, which governs arbitration) and is supplemented by extensive case law. The Legislature added Article 76 to the CPLR specifically in order to ensure that the parties’ election to have their dispute resolved by expert determination, as opposed to arbitration, is fully recognized and enforced by the New York courts. See In re Penn Central, 56 N.Y.2d 120, 126-27 (1982).
