Document Type
Article
Publication Date
2012
Abstract
Arbitration has long served as a contractual substitute for judicial litigation. It provided a workable and effective form of adjudication in ancient societies and among religious groups, much as it does in contemporary times. Its long-standing appeal resides in enabling parties to choose a private adjudicatory mechanism based upon expertise and expedition that delivers fair, affordable, and enforceable outcomes. Arbitral adjudication effectively intermediates between the need for functional trial procedures and the imperative of safeguarding legal rights. Rights cannot be vindicated if the applicable hearing mechanisms are inaccessible and inefficient. The protracted puffery of lawyers is not a feasible solution for most parties in conflict.
Arbitration rekindled the value of finality in adjudication. It gave res judicata its proper significance in the process of litigation. The conclusive resolution of disputes was indispensable to social civilization. A social dynamic in which disappointment was cultivated and failed circumstances were perpetually reconsidered would undermine the operation of society. In arbitration, the litigants’ time, energy, and treasure – not to mention their rights – no longer needed to be sacrificed to a distant, insatiable, and abstract "ideal" of justice. Parties could engage in an effective and workable process of adjudication. They could explain their behavior, state their positions on the issues, be given a determination, and resume their business activities. In arbitration, advocacy was reunited with a measured sense of purpose and an awareness that adversarialism could have a destructive impact upon the parties, their interests, and society. The utility and resourcefulness of the arbitral remedy eventually led it to have a broader role in American society.
Recommended Citation
Thomas E. Carbonneau, Freedom and Governance in U.S. Arbitration Law, 2 Global Bus. L. Rev. 59 (2012).