Viva Arbitration!

Outside the law school academy, most would not know of the existence of opposition to the growing use of arbitration. Arbitration between parties is generally believed to be quicker and cheaper than litigation. Others suggest that arbitration's real benefit, at least in the world of consumer transactions, is either to keep bad merchant practices under wraps or to steer the disputes to arbitrators who are biased in favor of the sellers of goods and services. Or both.

I have no dog in this fight. There are very good arguments on each side. But there are other reasons parties might agree to arbitrate rather than litigate.

Go here to read Arbitration's Counter-Narrative: The Religious Arbitration Paradigm (download here). About a year and a-half ago I posted with approval another of Michael Helfand's articles. You can read those posts here and here. And I'm pleased to commend this one to my readers' attention.

Cribbing from Michael's abstract:

Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, on the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. 

This Article, however, contends that this exclusive focus on arbitration’s standard narrative has left unexplored a competing arbitral narrative — a counter-narrative of sorts — that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes.

This Article considers a paradigmatic example of arbitration’s counter-narrative: religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. And, as a result, these forms of arbitration are embraced not solely as a utilitarian mechanism to resolve a dispute, but because they enable parties to resolve a dispute in accordance with shared religious principles and values.

In other words, arbitration can serve important non-pecuniary goals such as either the application of religiously-identified rules of law or arbiters who share the religious faith of the parties. Or both.

The Christian organization, Peacemakers Ministries, does precisely what Helfand describes. So too would Catholic courts of canon law and a Jewish bet din. Helfand's article thus serves to inform a wider audience of the non-utilitarian virtues of arbitration.