Uniform Arbitration: "One Size Fits All" Does Not Fit

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution

In recent years we have witnessed a dramatic upsurge in litigant use of alternative dispute resolution (ADR) mechanisms, both inside and outside the traditional litigation system. This explosive growth in ADR utilization presents courts with a fundamental problem. The cornerstone of ADR processes, and in particular, ADR process design, is party consent. In general, parties are free (on a shared consent basis) to shape the ADR processes they employ to suit their perceived needs. When disputants request that courts use dispute resolution tools, courts have, for the most part, adopted this precept, willingly accepting efforts by managerial litigants to shape the processes used to decide their disputes. The question of whether, and to what extent, this type of litigant control over the dispute resolution process in the judicial setting is appropriate, however, has been largely ignored. This Article addresses that question, and concludes that reliance on notions of party consent would provide insufficient protections against the threat to courts\u27 institutional integrity non-traditional requests for judicial action may present. The Article builds on existing case law regarding requests for non-traditional judicial involvement predicated on party consent (e.g., requests for summary jury trials, consent decrees, or vacatur), to suggest a twoprong test courts should implement in analyzing such requests in the future. First, the court must consider whether Congress granted it the authority to approve the parties\u27 request. Second the court must explicitly consider whether approval of the parties\u27 request will undermine the institutional integrity of the courts. Application of this test to the variety of requests parties are making both within and outside the ADR context will allow courts to create a standardized framework for evaluating party requests while, at the same time, ensuring that the court\u27s integrity as an institution is maintained

Arbitrator Diversity: Can It Be Achieved?

The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacy among diverse disputants would be to ensure greater diversity among those empowered to make decisions. Increasing diversity of neutral rosters––and more importantly, of the arbitrators ultimately selected from those rosters––may improve the public’s perception of the fairness and impartiality of the arbitration process. Increasing arbitrator diversity will have other benefits as well, including enhancing equal protection, equal opportunity, and complete participation norms. This Article suggests approaches that arbitration providers and participants in the arbitral process might adopt to enhance diversity in arbitrator selection. In particular, this Article posits that, while party control over arbitrator selection is a hallmark of arbitration, unbridled party selection may play an integral role in reducing diversity in the arbitrators selected. Among other things, winnowing to a single arbitrator, which the parties often undertake with relatively little information, may lead parties to rely on heuristics that incorporate explicit or implicit biases. One way to combat such concerns may be to reduce—at least at the margins—the extent of party control over the selection process. More specifically, adjusting the selection process to include a limited appointment aspect, rather than the traditional strike and rank approach, may substantially promote diversity while still preserving a strong role for party participation in arbitrator selection. In addition to direct arbitrator appointment, this Article explores other approaches that might enhance diversity in the arbitrator corps, including creating permanent panels of arbitrators, publicizing information about individual arbitrators, and implementing arbitrator evaluation processes. The proposed approaches would retain a strong role for party autonomy in the selection process while also providing a greater likelihood for diversity in the outcome of that selection process, in turn enhancing public perceptions of the fairness of arbitration as a dispute resolution mechanism

The Federalization of Consumer Arbitration: Possible Solutions

Originally appearing in the University of Chicago Legal Forum, Vol. 2013. Reprinted with permission from the University of Chicago Legal Forum and the University of Chicago Law School