There is a growing issue in ADR these days about the increasing amount of "legalism". This is a philosophical question about the way ADR is supposed to work: is the bar to entry to dispute resolution to be set extremely low, such that everyone has the option of participating or is the Ber to be set high so that disputes can only be solved with the assistance of an attorney, much the same way that the court system works today.
In many ways, especially in the realm of arbitration, ADR has become a creature of legalism. Arbitration is a means of permanently settling a dispute. Awards are enforceable. There is finality.
The process of arbitration is subject to forensic techniques common to litigation. Information about the dispute is obtained through a discovery process (in which, as all lawyers have been trained, the object is to gain as much information as possible so as to avoid prejudicial surprise). This information is then presented to the arbitration panel by human witnesses subject to examination and cross examination. The people that have been trained to do this happen to be attorneys. Finally, an award is issued which will reference findings of fact and conclusions based on the law and/or the contract.
The single largest shortcoming with this system is that there is usually not a system set up for awards to become case law for future parties to examine. The strength of stare decisis is that there is a defined strike zone for future reference. I arbitrate for several self regulating organizations in the futures and exchange industries where there is no recording of awards, thus the strike zone is set more by the personalities of the arbitrators than by binding precedent.
In the court annexed arbitration work that I do there is binding case law to abide by and there is a defined strike zone for the parties to aim for.
Lack of a defined strike zone affects arbitrator independence. In consumer and in employment cases, where a party, usually the employer or the provider of consumer services, sets up a ADR plan to avoid having cases litigated, there may only be a small pool of arbitrators. The people that make up the pool of arbitrators like to eat. The employer or the provider of consumer services may have many opportunities to utilize arbitration (consumers and employees may only use the system one time). The big player will want to use arbitrators that favor it over those who do not favor it, so there may not be real arbitrator independence. Awards that bind future panels assist in ensuring arbitrator independence.
Arbitration works well when the parties are ensured that there is a defined set of rules that everyone will be playing by. The AAA/ABA model rules are good examples. Where there is an industry wide practice of submitting disputes to arbitration, then there should be a corpus of "law" that the industry can turn to to avoid disputes in the future.
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