Originally From: Carbonneau on Arbitration: Collected Essays

I. INTRODUCTION

This Article focuses upon the emergence, growth, and development of arbitration in the U.S. legal system—what is described in the title as “The Story of Arbitration Law.” The Article will recount the tale in both its international and domestic aspects because they constantly interface despite their differences. It will also endeavor to assess the meaning of arbitration for the law and the practice of law. The principal point is both simple and straight-forward: If arbitration is to maintain its current status and continue to develop in the U.S. legal system, the deregulatory regime that presently applies is likely to become insufficient. It needs to be supplemented by a process that educates and confers basic credentials upon the participants in the process.

A program of educational certification would provide a modest but necessary level of supervision and thereby help to maintain the integrity of the process. The educational program should be directed at existing and prospective arbitrators and arbitration attorneys. It should also include a component of civic instruction for the general public. U.S. citizens should be informed about arbitration and develop a knowledge base about it that is at least equivalent to their appreciation of the legal system. U.S. law schools should take the lead in instituting and implementing this educational program.

The Article will also touch upon other central themes. It discusses the distinction between arbitration and mediation with a view to establishing which process provides society with the more essential values. It will also address political underpinnings of the contemporary judicial doctrine on arbitration. Finally, recommendations will be made for modifying the Federal Arbitration Act to have it mirror more accurately the content of current law.