Adhesive Arbitration - Chapter Five - Law and Practice of United States Arbitration - Seventh Edition
1. An Overview
In its ‘traditional’ form, arbitration was barely visible in the adjudicatory operations of the legal system. If noticed, judges and lawyers deemed it a modest approximation of a ‘real’ trial. It was suitable solely for simple disputes between members of specialized groups that were outside the societal mainstream. Arbitration proceedings were akin to a bench trial in which a single judge presides and applies procedural, interpretive, and evidentiary rules flexibly. Juries are not a part of arbitration. Legal standards are adjusted to the objectives of an informal adjudicatory procedure. Arbitrators conduct the proceedings and decide the merits. Judicial scrutiny is restricted to supervising the contract validity of the arbitration agreement and the enforceability of the arbitral award. Finally, the application of mandatory legal rules is not exacting.
The U.S. Supreme Court eventually reconsidered and significantly transformed traditional arbitration. The resulting process of ‘contemporary’ arbitration endeavors to remedy the systemic deficiencies of the legal system. It addresses the public need for a functional process of civil adjudication. Arbitration provides access to expert adjudication and binding results at a reasonable cost. In arbitration, there is no discovery or appeal on the merits. The equal treatment of the parties defines procedural fairness. Institutional actors and regulations can assist arbitrators to conduct the proceedings. The arbitral trial is not intended to function on the basis of lawyer advocacy. The governing law prohibits judicial encroachments upon the process. In addition to expertise, the choice of arbitration means economy, expedition, and final and binding outcomes. Arbitral adjudication achieves both fairness and functionality—attributes that seem perpetually to elude the judicial process and trial.