Judge Not: In Defense of Minority-Culture Arbitration
23 Pages Posted: 31 May 2015 Last revised: 6 Jun 2015
Date Written: 1999
Arbitration can serve as a necessary safe harbor from procedural and substantive cultural bias in the general public courts. Arbitration also can serve as a laboratory for process reforms as cultural minorities attempt to craft rules that better govern their lives than do the purportedly “one size fits all” rules that the majority has crafted. In so allowing cultural minorities to structure their lives and legal disputes in ways that reflect their particular needs, minority-culture arbitration also has great potential for habituating the general public to the realities of the lives of cultural minorities and to the notion that custom-made responses to these realities are both possible and appropriate. These two habituations would be likely to lead to easier acceptance of necessary process reforms that would better serve cultural minorities in the public courts.
Each time cultural minorities use arbitration to contract around a hostile or dysfunctional rule of general application and to replace this rule with a better-serving custom-made rule, they have an opportunity to demonstrate to the general public that the process shortcomings that drove the cultural minorities from the general public courts are not intractable. They also have the opportunity to demonstrate to the general public the utility of custom-made solutions to minority-culture concerns and that these solutions to process shortcomings can be implemented with little cost to the general public. If minority-culture arbitration were to become routine, it is possible that the general public would habituate to the idea that process-customization is both practical and useful. Such habituation would lessen resistance to adoption of process reforms tailored to cultural minorities.
Arbitration also can facilitate habituation in a larger social context. This second tier of habituation arises from the consequence that arbitration allows the minority culture to survive and even to flourish. Biased procedural and substantive law undermines the minority culture at the same time that it disadvantages the minority-culture litigant. Arbitration allows cultural minorities to protect themselves from these majoritarian procedural and substantive biases that deny the validity of their values and relationships and consequently undermine those values and relationships.
The end product of this protective maneuver is a larger public space for the minority culture. As the minority culture flourishes, the general public more frequently comes into contact with that culture and habituates to its realties. Again, this habituation is likely to pave the way for process reforms in the majoritarian legal system.
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