Current Issues in Arbitration: Introduction

Article excerpt

"[A]n incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."1

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement.2 Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation,"3 is not a novel idea. In fact, ADR was present in America as early as the seventeenth century.4 In certain parts of colonial America, voluntary arbitration was a common way to settle disputes; judicial enforcement was largely unnecessary because of the trust inherent in a society in which survival depended on cooperation.5 By the early 1700s, however, rapid population growth and increased migration triggered a drastic change in the nature of dispute resolution.6 No longer able to rely on purely voluntary arbitration, people increasingly resolved disputes in court.7

Years later, the Civil Rights struggles and Vietnam War protests of the 1960s and 1970s discouraged tolerance for traditional courtroom disputes, while, ironically, generating new statutory causes of action.8 The confluence of these trends triggered the modern ADR movement.9 Since then, the use of ADR has increased dramatically.la Today, ADR is used in virtually all fields, including labor and employment disputes, small civil disputes, family disputes, consumer problems, environmental complaints, prisoner grievances and international conflicts.ll

Despite the dramatic increase in the use of ADR, critics are quick to point out ADR's shortcomings. Many critics argue that ADR is a lesser form of justice, claiming that it is almost always biased in favor of large corporations, especially those who regularly employ ADR methods.l2 Other scholars maintain that as ADR becomes more prevalent in modern society, it becomes more mainstream than alternative.ls As ADR becomes more institutionalized, the flexibility traditionally associated with ADR, as well as the parties' ability to dictate their own terms, naturally decreases.l4 In addition, the close link with the legal profession and its accompanying regulations may also hamper the cost-effectiveness and efficiency of ADR.15

These criticisms may apply equally to all forms of ADR; however, unique concerns accompany specific methods of dispute resolution. The different forms of ADR include arbitration, mediation, and mini-trials.l6 Arbitration is adjudicatory in nature and most closely resembles litigation.l7 In arbitration proceedings, parties, pursuant to an arbitration agreement, submit their dispute for consideration by an arbitrator whom the parties have selected.ls After hearing both sides of the dispute, the arbitrator renders a binding decision.l9 Unlike litigation, however, the decision in an arbitration is final and usually cannot be appealed, regardless of whether it was fair or consistent with well-settled legal principles.20 This finality highlights the importance of a fair and equitable arbitration agreement, one that demonstrates precisely the intent of each party. This year's Special Project focuses on the particular legal issues surrounding the creation and interpretation of arbitration agreements. The following Notes seek to guide courts and policymakers struggling to decide these critical issues. One issue with which courts and scholars have struggled is the enforcement of compulsory arbitration agreements in employment contracts.21 Employers are increasingly including mandatory, binding arbitration clauses in pre-employment agreements to force employees into arbitrating statutory discrimination claims; however, the enforceability of such clauses is unclear, particularly when contained in collective bargaining agreements.22 The first Note in this Special Project, Compulsory Arbitration Agreements in Employment Contracts from Gardner-Denver to Austin: The Legal Uncertainty and Why Employers Should Choose Not to Use Pre-Employment Arbitration Agreements, emphasizes the lack of judicial consistency in enforcing compulsory arbitration clauses in both individual employment agreements and collective bargaining agreements when employees bring discrimination suits under federal statutes. …

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