The End of Arbitration as We Know It? Arbitration under Attack
Yearbook on Arbitration and Mediation (Penn State), Vol. 3, p. 93, 2011
32 Pages Posted: 1 Oct 2011
Date Written: September 1, 2011
During the past few years arbitration has been under attack. Recent judicial decisions, newly enacted and proposed legislation, and populist sentiments are important and obviously can result in significant changes. But many of the criticisms leveled at arbitration can be addressed and, most significantly, there are practical and inescapable realities that will ensure arbitration’s survival. Arbitration’s viability as a popular and effective dispute resolution process will continue as a result of powerful economic, cultural, and social developments. The increasing and worrisome inability of state governments to adequately fund the judiciary, combined with the fact that, as a society, we continue to integrate technology into every aspect of our lives, guarantees that arbitration will remain the dispute resolution process of choice in many circumstances. But we must keep in mind that as we move forward, practices and procedures that we take for granted today may no longer be available. This article will explain how state governments’ budget challenges and society’s increasing migration to technology will strengthen arbitration’s status as a convenient and effective dispute resolution process. The article will identify and discuss the most noteworthy attacks on arbitration and explain why these attacks will not be fatal. Finally, recent United States Supreme Court cases Rent-A-Center, West, Inc. v. Jackson; Stolt-Nielsen S.A. v. AnimalFeeds International Corp.; and AT&T Mobility v. Concepcion will be summarized and the impact of those cases on the future of arbitration will be discussed.
Keywords: arbitration,mediation,dispute resolution,ADR,conflict,judiciary,court,government,budget,technology,Rent-A-Center,Stolt-Nielsen, Concepcion,litigation,TMDR,ODR,unconscionability,predispute,mandatory,consumer,employment,fairness.FAA,NLRA,National Labor Relations Act, Federal Arbitration Act
JEL Classification: A10,D63,D74,D70,E24,F13,H10,H11,H50,H54,H70,J50,J52,J53,K10,K19,K20,K31,K40,K41,L50,M10,O33
Suggested Citation: Suggested Citation