The Lost Promise of Arbitration
Sarah Rudolph Cole, Th e Lost Promise of Arbitration
The Lo st Promise of Arbitration
Sarah Rudolph Cole 0
0 Moritz College of Law, Th e Ohio State University , USA
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ARBITRATION
Sarah Rudolph Cole*
This article disputes the notion that arbitration, a historically informal
process, tends to disadvantage minority disputants or provide them with
quick decisions tainted by prejudice. Responding to Richard Delgado’s
seminal work, Fairness and Formality: Minimizing the Risk of Prejudice
in Alternative Dispute Resolution, this article attempts to shed greater
light on the benefits of modern arbitration for minority disputants.
Although still capable of improvement, arbitration may well provide greater
protections to minority disputants than does litigation. Since Delgado first
wrote his article, the use of arbitration as a primary dispute resolution
mechanism has increased dramatically, particularly among businesses and
employers. As arbitration expanded, critics of the informal process
worked to reform arbitration so that it provided sufficient protection to
disputants who were compelled to use it. Modern arbitration provides a
more formalized and structured process that resembles litigation, but
continues to offer resolution more efficiently and cheaply. Assuming
Delgado’s premise—that formality matters in promoting equality in dispute
resolution—arbitration’s enhanced formalism suggests significant promise
for reformers who seek to improve minorities’ fair and effective
representation in dispute resolution. This article opens the dialogue for further
innovation by proposing impactful changes to the arbitration process. These
reforms would include such improvements as mandatory reasoned
opinion-writing and greater diversity in arbitrator appointments. In turn, these
process-based reforms would enhance arbitration’s formalism and thereby
improve its protection for minority disputants and any other party likely to
be at a disadvantage in a dispute resolution venue. This contemporary
perspective on arbitration fosters a fair and equitable dispute resolution
mechanism for those with less bargaining power than their opponents.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. FORMALISM’S BENEFITS FOR MINORITY DISPUTANTS . .
B. THE CHARACTERISTICS OF FORMAL ADJUDICATION . . .
II. WHAT DOES TRADITIONAL ARBITRATION LOOK
LIKE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. ARBITRATION OPINION WRITING: FORMALIZING
ARBITRATION AT A (RELATIVELY) LOW COST . . . .
A. PUBLISHED REASONED WRITTEN OPINIONS WILL
BENEFIT THE ONE-SHOT PLAYER . . . . . . . . . . . . . . . . . . . . .
1. Reasoned Written Opinions . . . . . . . . . . . . . . . . . . . . . . . .
2. How the Published Reasoned Written Opinion
Benefits the One-Shot Player and/or Minority
Disputant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. IMPROVING THE ARBITRATOR SELECTION PROCESS . . .
1. Reasoned Written Opinions Enhance Accountability
in the Decision-Making Process . . . . . . . . . . . . . . . . . . . .
2. Establishing Arbitrator Competence . . . . . . . . . . . . . . . .
C. PUBLISHED REASONED WRITTEN OPINIONS ARE
POSSIBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. DIVERSITY IN ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . .
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
857
868
IPrejudice in Alternative Dispute Resolution,1 Richard Delgado and
N his seminal article, Fairness and Formality: Minimizing the Risk of
his co-authors posit that formal dispute resolution processes, like
trials, offer a preferable forum for minority disputants, particularly in
disputes involving an opponent2 of higher status or power.3 Delgado
theorized that the formalism associated with the trial process reduces the
risk that parties who hold prejudicial attitudes will act on them.4 By
contrast, in informal processes, an opponent of higher status or power is
more likely to act on its prejudices, placing minority disputants at a
greater disadvantage than they would experience in traditional litigation.5
In drawing this conclusion, Delgado includes a wide variety of dispute
1. Richard Delgado, Chris Dunn, Pamela Brown, Helena Lee & David Hubbert,
Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution,
1985 WIS. L. REV. 1359 (1985).
2. Delgado’s primary concern appears to be the possibility that an opponent with
higher status and power is more likely to act on his or her prejudices in an informal setting
than a formal one. Yet the formality of the courtroom not only suppresses an opponent’s
willingness to act on his prejudices, but also decreases the likelihood that the neutral third
party will act in a (...truncated)