Arbitration’s rapid growth has come under pressure in recent years. A Supreme Court decision holding that awards under the Federal Arbitration Act cannot be vacated for substantive error even if they clearly are wrong has helped discredit arbitration. Misuse of arbitration clauses in consumer, employment, and franchise settings has led to proposals for radical constriction under the proposed Arbitration Fairness Act of 2009. Facing these challenges, arbitrators need to ensure the quality of their awards by adhering to the rule of law and resisting the temptation to administer a personal brand of justice. They need to discourage silent awards and provide reasoned decisions unless the parties request otherwise. They need to resist any presumption that discovery should be curtailed solely because the parties chose arbitration, even as they work hard to ensure that arbitration proceedings do progress more quickly and cheaply – and with less discovery -- than cases in the court system. And arbitrators need to review dispositive motions with particular care, because their awards are subject to such limited review. Measures like these, which will produce the highest quality awards, are the best steps arbitrators can take to counteract the attacks on arbitration.
- civil procedure,
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