The Metaphysics of Arbitration: A Reply to Hensler and Khatam

Abstract

What is arbitration? Do all forms of arbitration have a “common character” — for example, that they are designed to handle only private disputes? Is this what makes arbitration categorically different from a court? When procedures sometimes found in more public forms of adjudication — discovery, reasoned awards, and appellate review — become more common in arbitration, at what point do they threaten to turn it into something it is not or was not meant to be?

These are the tough, metaphysical questions lurking in the shadows of Professor Deborah Hensler and Ms. Damira Khatam’s thought-provoking new article, Re-inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication, which was the centerpiece of a symposium recently hosted by the Nevada Law Journal. In this essay, I consider some of the difficulties associated not just with asking, but also with attempting to answer, these questions. I argue that we should resist the urge to engage in what I call the “metaphysics of arbitration” when advancing policy arguments or advocating for reform in the arbitration area.