By Stephen Stachowski
ALR Senior Editor, 2017-2018
One of the key, if not predominant, purposes of arbitration is to serve as an effective and efficient form of alternative dispute resolution.[1] In the world of capitalism such a purpose may even be considered a virtue. However, this purpose may be especially disheartening because in its pursuit of efficiency arbitration leaves behind another virtue: justice.
So, is justice a pursuit of arbitration at all? Some scholars may argue that arbitration absolutely cares, or should care, about justice,[2] while others may argue that while justice is important, it is not as important as the efficiency and effectiveness of the arbitral process.[3] Still others may argue that justice is irrelevant because finality is the main and only concern of the arbitral process.[4]
No matter how one answers this question, arbitration has already decided on whether justice is pursuit of arbitration. When the use of experts as adjudicators skyrocketed in arbitration, justice was not a forefront purpose or pursuit of the arbitration process. For if arbitration were concerned about justice, it would permit the common man to administer it in the arbitral process, as the common man is a better administrator of justice than the expert.
G.K. Chesterton’s article “The Twelve Men” illustrates the value of a lay person’s role in administering justice.[5] In the article, Chesterton recounts and reflects on his jury experiences:
I was put into this box because I lived in Battersea, and my name began with a C. Looking round me, I saw that there were also summoned and in attendance in the court whole crowds and processions of men, all of whom lived in Battersea, and all of whose names began with a C.[6]
He describes how he found it interesting that when fairness and justice are at stake, the law calls ordinary folk to administer said fairness and justice, a process known as the jury system.[7] In addition, he reflects on the seemingly contrary notion that when society generally needs something, they call on trained professionals. Chesterton notes:
We tend to have trained soldiers because they fight better, trained singers because they sing better, trained dancers because they dance better, specially instructed laughers because they laugh better, and so on and so on.[8]
Chesterton attempts to reconcile these competing ideas by asking the following questions: why does the law call upon laypeople to administer justice? What makes common folk better at pursing justice compared to experts? Chesterton explains that common folk are better at deciding justice than trained legal experts.[9] He notes that the virtue of justice is something society values greatly.[10] However, when a legal expert continuously administers justice he or she becomes desensitized to justice’s great value in society as the administering of justice becomes normal.[11] This is similar to a person’s everyday use of china, which eventually causes the china to lose its luster or importance in the household: “That the more a man looks at a thing, the less he can see it, and the more a man learns a thing the less he knows it.”[12] For a society to flourish, the virtue of justice cannot lose its luster, as its pursuit will be less attractive.[13]
Chesterton’s argument supports the claim that common men are more capable and better at administering a just and fair result than trained professionals. Given the importance of laypersons’ input, it is interesting that arbitration goes against the wisdom of the jury system, subjecting itself solely to the judgment of experts. In doing so, arbitration decides that justice may not be an important endeavor, which can be a detriment to arbitral longevity and popularity as a form of alternative dispute resolution. In the future, enforceable arbitration clauses should be required to include a provision that permits either party to the agreement to have their disputes heard and decided by a jury of their peers.
[1] See Thomas J. Stipanowich, Reflections on the State and Future of Commercial Arbitration: Challenges, Opportunities, Proposals, 25 Am. Rev. Int’l Arb. 297, 298 (2014).
[2] Judge Craig Smith & Judge Eric V. Moyé, Outsourcing American Civil Justice: Mandatory Arbitration Clauses in Consumer and Employment Contracts, 44 Tex. Tech L. Rev. 281, 282 (2012).
[3] Linden Fry, Letting the Fox Guard the Henhouse: Why the Fifth Circuit’s Ruling in Positive Software Solutions Sacrifices Procedural Fairness for Speed and Convenience, 58 Cath. U.L. Rev. 599, 620 (2009).
[4] Michael Cavendish, Fortress Arbitration an Exposition of Functus Officio, 80 Fla. B.J. 20, 24 (2006).
[5] G.K. Chesterton was a prominent English writer during the late 1800s and early 1900s. He published numerous books, short stories, poems, essays, and plays. G.K. Chesterton, Tremendous Trifles XI (1909) (ebook).
[6] Id.
[7] Id.
[8] Id.
[9] Chesterton, supra note 6.
[10] Id.
[11] Chesterton, supra note 6.
[12] Id.
[13] See generally Terence Irwin, Plato’s Ethics 259 (1995).