The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution
Pepperdine University School of Law
June 19, 2012
Nevada Law Journal, Vol. 8, No. 1, 2007
Pepperdine University Legal Studies Research Paper No. 2008/1
After a generation of growing emphasis on informal methods of conflict resolution, the surrounding legal landscape remains "aimless, meandering, and . . . confusing." The "penumbra" of arbitration law - a body of judicial decisions involving application of federal or state arbitration statutes to processes that are to one degree or another different from "classic" arbitration, or to the interface between arbitration and earlier stages in multi-step dispute resolution processes - reflects the failure of courts to articulate clear and well-reasoned approaches to the new generation of dispute resolution tools.
The application of arbitration law entails a variety of specific legal consequences affecting many different aspects of the process. Applying these principles to mediation and nonbinding arbitration is either illogical or of limited utility. Undertaking a case-by-case analysis in order to determine whether or not some aspect of federal or state arbitration law controls imposes a heavy burden on courts to develop a body of law regarding dispute resolution agreements, adding complexity and judicial interference into processes aimed at their avoidance. Should litigation be stayed and a nonbinding, settlement-oriented process compelled? Should a mediator or third party decision maker be accorded immunity? Questions such as these require thoughtful consideration of the parties' intent and relevant public policies - elements that may be very different from those underlying an agreement for binding arbitration.
Although some courts have availed themselves of the opportunity to employ the law of contract, including legal and equitable remedies, in support of ADR processes, others have not done so for a variety of reasons including mistrust or misperceptions about ADR, perceived limitations on equitable relief. Courts need guidance for the legal effectuation of dispute resolution procedures, as well as issues on the interface between processes. In this regard, statutory reform presents significant challenges and dangers, especially when employed on a broad scale. Careful consideration should be given to the possible development of a RESTATEMENT OF DISPUTE RESOLUTION. Even if a Restatement approach is ultimately rejected, a well-structured multi-disciplinary discussion may produce important new guidance for the field.
Number of Pages in PDF File: 47
Keywords: arbitration, conflict resolution, dispute resolution, ADR, mediation, statutory reform
JEL Classification: K40, K41, K49Accepted Paper Series
Date posted: August 20, 2007 ; Last revised: June 22, 2012
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