Arbitration is far superior to conflict. Justice does not easily triumph in conflict, but there is hope for it in arbitration.
Black’s Law Dictionary [6th Edition, 1991] defines legal arbitration as: “A process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.” “Voluntary arbitration is by mutual and free consent of the parties.”
Also, “An arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to established tribunals of justice, and is intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation.”
A key factor in arbitration, particularly voluntary arbitration, is the ability of the parties to choose the arbitrator. This is equivalent to being allowed to interview judges to decide which one is best for you. The other party(s) must of course agree with your choice(s), but each party does have the option of definitely deciding against a particular arbitrator. An arbitrator notoriously chauvinistic, for example, could be eliminated by any female in the dispute.
Robert Heinlein, in his book The Moon Is a Harsh Mistress, elevated the arbitrator’s role to a critical factor in the government of his fictional society. Arbitrators became anyone the parties of a dispute could agree upon as being able to give a fair verdict. This ability to choose provided the parties with a sense of being able to control their destinies. It was not an acquiescing to a jargon-rampant, mind-boggling, illogical, irrational court system. It was not leaving a decision very important to the parties to an overworked judge who had no greater agenda than to clear his docket as soon as possible.
The concept of having anyone as an arbitrator does raise the specter of any such choice being someone who will make an arbitrary decision. Arbitrary, by the way, is defined as: “In an unreasonable manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things: nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; despotic; tyrannical; capriciously. Without fair, solid, and substantial cause; that is, without cause based upon the law. Willful and unreasoning action, without consideration and regard for facts and circumstances presented.”
An arbitrary arbitrator, therefore, is quite possibly not a good thing. And thus there is now a substantial body of statutory law regarding arbitration. Theoretically, a judge is carefully bound by duty, precedence, and statutory law, and thereby required to render honest judgments. So should, the reasoning goes, arbitrators. In reality, statutory law is often used as a crutch to justify capricious decisions.
Judges are for the most part far more arbitrary and capricious than arbitrators. This is because the employment of the judge is an automatic (sometimes from a random selection -- i.e. he or she is working on the case no matter what the parties would prefer) -- whereas the selection of an arbitrator can be voluntary, and an arbitrator will get precious little business if he or she is arbitrarily unfair or biased. Judges are not getting paid on the basis of piece-work (as are arbitrators), but are salaried -- typically in tenured or long-term positions -- and thus have no motivation to develop a reputation as fair-minded or honest. There is often the “god” syndrome with judges (much like some medical doctors), whereas arbitrators are dependent totally upon their reputations for honesty and fairness.
Any viable and beneficial Anarchy requires voluntary arbitration. Anarchy is an absence of government, and thus an absence of judges. Yea! It may, instead, be based on good manners. Heinlein, for example, was basically an anarchist, but not sufficiently radical to disallow all governing structures. Instead, his governance was one chosen by the people, and not imposed by military and/or police force of arms. This is where arbitrators shine!
The Constitution of Halexandria includes as a key ingredient, the use of arbitrators (in lieu of judges). Arbitrators need not be licensed, and parties choosing an arbitrator are held responsible for their choices. Arbitrators in such a society are required to follow the principles and guidelines of the ruling constitution, but otherwise can be quite arbitrary. This is as it should be, in that arbitrariness can be used to achieve justice at any cost! Instead of being bound to arcane rules which do not adequately address fairness, an arbitrary arbitrator can arbitrarily choose justice over precedence or the letter of the law.
Arbitration is also (or should be) intimately linked to Restorative Justice. This is a return to The Golden Rule, wherein individuals attempt to do what is right instead of what is law. It is an arbitrary, capricious, and tyrannical attempt to do good -- a fact which can really upset a great number of judges, attorneys, lawyers, and law-enforcement anal retentives.
For those still dealing in the world of the latter, there is: <http://www.interarb.com/vl/>, an excellent site for Arbitration in the international or national sense. This website if a www virtual library, and includes categories of:
Some frequently asked questions across the whole range of dispute resolution
An ability to add to the library
A listing of the personal and practice websites of practitioners: arbitrators, mediators and other dispute resolvers, as well as personal/biographical information relating to those connected with dispute resolution
A diary of events and listing of conferences, seminars and other events related to arbitration (in the broadest sense)
A geographical index -- a listing of regional bodies, and a country-by-country listing of institutions and of other sources of relevant information.
Some selected subjects and links to information and discussion on them, including: Links to sites that provide more general information.
International bodies for Commercial Arbitration
International bodies for Public - and Mixed - Arbitration
Articles and papers on arbitration published on the web; Statutes, Rules,
Research on Arbitration
For those no longer dealing in that world, and who prefer instead Creating Reality of a different sort, stay with us and continue your random walk within these Cyberspace walls. We will try to keep you informed/entertained in an arbitrary way.
2003© Copyright Dan Sewell Ward, All Rights Reserved [Feedback]