As arbitration continues to rise as an alternative to litigation, it requires skilled counsel. Whether the dispute involves family law or business matters, it begins with an important decision: choosing an arbitrator.
Arbitration allows parties to choose their neutral decision-maker. This can be a distinct advantage. However, it also raises several issues that need to be explored.
Arbitration is a process where you and the person you are in dispute with put your case to an independent arbitrator. The arbitrator listens to both sides of the story, looks at all the evidence, and decides the outcome. The decision is binding on both parties.
There is a widely held belief that arbitrators must be impartial like judges that judges are. This is partly because both courts and arbitrations are considered part of the judicial system, so the analogy appeals to common sense.
However, there are fundamental differences between the adjudicatory function performed by judges and that of arbitrators, which justify a more differentiated approach to independence and impartiality. Independence is generally understood to result from certain institutional conditions or safeguards that ensure an adjudicator is free of external pressures in their decision-making process. These include:
Similarly, the notion of impartiality is generally understood to be based on having sufficient institutional conditions in place to guarantee that an adjudicator makes decisions without influence by external factors. In the context of arbitration, this includes having:
Flexibility of Process and Procedure
Arbitration is an alternative method of dispute resolution that allows individuals and businesses to resolve disputes without the expense and uncertainty of litigation. Many companies include arbitration clauses in their commercial contracts to quickly fix it through FINRA arbitration rather than going to court if they disagree. Arbitrators conduct a hearing in which all parties present evidence through documents, exhibits, and testimony. The hearing is usually held in offices or other meeting rooms. Arbitrators may establish their procedures or follow the guidelines established by an administrating organization. In some cases, there is a single arbitrator; in others, there is a panel of three or more.
Arbitrators must be able to tailor their approach to the particular case in question and the circumstances of each party. The arbitration process can be less formal than a traditional court case, and the presiding arbitrator can streamline the proceedings. Nonetheless, all elements typical of a court trial will typically be present, such as opening statements and arguments, evidence and testimony, deliberations, and a decision called an award.
An arbitrator must disclose any relationship with a party to a dispute or any current stock or bond ownership, management positions, consultation work, or financial arrangements that could affect their impartiality. They must also adhere to any agreed-upon agreements governing fees and expenses for their services.
While arbitration, like mediation and conciliation, enables parties to find admissible solutions to their conflicts outside traditional legal / court proceedings, it differs from the latter in that it culminates in a binding decision. Thus, arbitrators must ensure the process is efficient and economical because it will ultimately produce a legally binding outcome.
Some of the most significant challenges faced by arbitrators are based on procedure issues. For example, some arbitration agreements shorten statutes of limitations, limit discovery, alter burdens of proof, or impose constrictive rules of evidence. These provisions often make it difficult for employees and consumers to win their cases, especially when corporations are unwilling to award generous damages.
In response to these concerns, some respondents to our survey reported that arbitration tends to become overly formal and that arbitrators exhibit a type of “due process paranoia.” This can deprive parties of the efficiency, speed, and cost savings they expected when they agreed to an arbitration agreement.
Other issues of concern related to the effectiveness of arbitration include:
- Lengthy prehearing and post-hearing briefings.
- The length of hearings.
- The practice of having multiple arbitrators (one of the reasons our informal poll of in-house counsel indicated that they prefer one arbitrator over a panel).
The most important thing for institutions, arbitrators, and parties is consciously striving for greater efficiency.
Arbitration is used in many countries, either voluntarily or by law. Compulsory arbitration can resolve various disputes, including workplace, labor relations, employment, and contract disputes. The benefits of mandatory arbitration include speed, cost-effectiveness, and confidentiality. Arbitration also allows for a wide variety of specialist expertise to be brought to bear on a case and can avoid the delays, costs, and legalism associated with court proceedings.
However, compulsory arbitration raises several ethical questions that must be considered carefully. In particular, there is a risk that the arbitrator may be biased towards one party or the other if they have personal relationships with members of a company or union involved in the dispute. Arbitrators must fully disclose any circumstances that might give rise to a conflict of interest and assess whether the potential conflict is significant enough to prevent them from serving in the matter.
The arbitrator should be courteous to the parties and their representatives and encourage similar conduct by other participants in the arbitration process. They should also refrain from letting the matter become bogged down or prevent them from performing their duties diligently. If the arbitrator believes they cannot maintain impartiality, they should resign or request removal. In the event of such resignation or removal, the arbitration rules and agreement usually outline the procedure for replacing the arbitrator.