Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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In his elegant article, Professor Bermann lucidly illustrates the need to adopt a wide lens when assessing the arbitration-friendliness or “pro-arbitration”-ness of a particular practice or policy.  This widened lens, he explains, should consider not only traditional “pro-arbitration” metrics like cost-effectiveness, efficiency, flexibility, finality, and party autonomy but also legitimacy considerations based on values “extrinsic to arbitration.” Determining when traditional metrics should be subordinated to so-called legitimacy considerations, Professor Bermann amply demonstrates, is a challenging and likely subjective exercise.  One complexity that plagues such “pro-arbitration” trade-offs but receives little explicit discussion in Professor Bermann’s article concerns the choice of the appropriate timeframe or temporal lens for analysis.  Indeed, this choice influences how one determines the optimal “pro-arbitration” trade-off in several important ways. For instance, expanding the timeframe for analysis inevitably affects the framing and subsequent assessment of the costs and benefits of a given arbitration-related policy or practice.  It may thus influence decisions about which policy or practice alternative best reconciles conflicts between different “pro-arbitration” considerations. Moreover, the relative weight or importance that one ascribes to a particular legitimacy consideration may depend on the temporal lens adopted.