Originally from The Law and Practice of United States Arbitration - Sixth Edition

Preview Page

1.  An Assessment

When the Court’s arbitration doctrine was in its embryonic stages, arbitral adjudication was barely visible in the legal system and, if noticed, could only lay claim to an inglorious reputation.  In some respects, arbitration is the equivalent of a bench trial; an expert presides and there is no need for strict rules of evidence because juries are not a part of the process. Moreover, the proceeding and procedure are flexible; the rigor of standard judicial protections is adjusted to the goals of this form of arbitration. The jurisdictional effect of the arbitration agreement is to exclude adjudicatory recourse to the courts. Because the parties agreed to arbitrate, only the designated arbitrators can decide the parties’ disputes. The courts have only a limited supervisory authority over the award.

Privatized adjudication has other consequences that make it different from the judicial process. For example, if a contracting party cannot pay the deposit for arbitral and institutional fees, that party would be precluded from participating in the arbitration if a dispute arose.