Arguments in Favor of the Triumph of ArbitrationCardozo Journal of Conflict Resolution
AbstractArbitration is not just another trial procedure. It epitomizes a practical understanding of the purpose and value of adjudicatory procedures. It poses a substantial challenge to adversarial litigation by exposing its underlying irrationality and its destructive impact upon society. It guarantees the rule of law domestically and internationally through affordable access, expedited proceedings, expertise, and bridging the gap between national legal systems. It is a valuable institution that should not become a pawn in the tired and unimaginative political discourse that substitutes 'talking points' for genuine reflection and debate. The gravamen of the current attack on arbitration is not the preservation of American constitutional culture, but the advancement of an ideological agenda and the economic self-interest of a special interest group favored by those in power. The high-minded rhetoric simply creates a respectable camouflage for engaging in collusion, greed,and self-serving partisanship. Arbitration embodies a trial process grounded in common sense, flexibility, and an ethic of problem-solving. Arbitral proceedings allow disputing parties and their representatives to assemble the facts, present witnesses, assert and contest positions, and argue about governing predicates. They culminate in a final ruling by the adjudicator on the matters under consideration. Only a true failure in procedural fairness may lead to a viable appeal.In other words, arbitration personifies due process and justice. It enables society to resolve disputes and to prosper by dedicating its resources to other activities. Arbitration withstood the prejudicial assessments of old. It outlasted judicial animosity. It has discredited the religion of process. It traverses the formidable cultural divides between varying national concepts of justice. It undergirds global economic transactions.
Citation InformationThomas E. Carbonneau. "Arguments in Favor of the Triumph of Arbitration" Cardozo Journal of Conflict Resolution Vol. 10 (2009) p. 395
Available at: http://works.bepress.com/thomas-carbonneau/14/