The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution

47 Pages Posted: 20 Aug 2007 Last revised: 22 Jun 2012

See all articles by Thomas Stipanowich

Thomas Stipanowich

Pepperdine University Caruso School of Law

Date Written: June 19, 2012


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.

Keywords: arbitration, conflict resolution, dispute resolution, ADR, mediation, statutory reform

JEL Classification: K40, K41, K49

Suggested Citation

Stipanowich, Thomas, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution (June 19, 2012). Nevada Law Journal, Vol. 8, No. 1, 2007, Pepperdine University Legal Studies Research Paper No. 2008/1, Available at SSRN:

Thomas Stipanowich (Contact Author)

Pepperdine University Caruso School of Law ( email )

24333 Baxter Drive
Malibu, CA 90265
United States
310-506-4389 (Phone)
310-506-4437 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics