Court-ordered Arbitration

An Alternative Overview

by Deborah R. Hensler

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Policy and scholarly debates over the wisdom of mandating arbitration for civil lawsuits usually focus on differences between arbitration and trial, and on values that litigants may forfeit if the court requires them to arbitrate their disputes, rather than take them to trial. Critics often view the requirement that litigants arbitrate as a denial of adjudicatory process or, at least, as an obstacle to obtaining adjudicated resolutions of disputes. This article, reprinted from The Legal Forum, argues that in many metropolitan courts in the U.S. today, arbitration is the only adjudicatory mechanism actually available to most litigants with ordinary civil cases. Because litigants must wait from two to five years for cases to reach trial, and because many lawyers are unwilling to invest their time in trying smaller-value cases, litigants' real choice in courts that offer arbitration is between arbitration and settlement. Therefore, more attention should be given to the differences between these two dispute resolution mechanisms. This article describes court-ordered arbitration and distinguishes it from other dispute resolution procedures; summarizes the development of court arbitration programs and places this development within the context of the alternative dispute resolution (ADR) movement; and reviews policy and scholarly concerns that have been expressed about the expanding role of court-mandated arbitration. Finally, it draws on evaluations of arbitration programs and procedural justice research, and details empirical findings on: (1) the consequences of adopting court ordered arbitration programs, (2) litigants' standards of due process, and (3) litigants' assessments of the degree to which various court processes — including arbitration — satisfy these standards. The author urges that rather than opposing arbitration as a matter of principle, legal scholars consider how to modify arbitration rules to strengthen due process. At the same time, she cautions those who are interested in improving the arbitration process to resist what might otherwise be their natural impulse: to make arbitration hearings increasingly resemble trials.

Originally published in: The Legal Forum, v. 1990, pp. 399-420.

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