The Historically Shifting Sands of Reasons to Arbitrate

James Oldham

It is well established that for many centuries, arbitration has been a regular, even frequent, method of dispute settlement in the Western World. Derek Roebuck has done path breaking research demonstrating this in his recent book covering the middle ages (1154-1558) and in his contribution to this symposium, “The English Experience: What the First American Colonists Knew of Mediation and Arbitration.” My own work, with the excellent help of co-authors Henry Horwitz and Su Jin Kim, has explored English patterns from the late 17th century into the 1800s, also tracing the English approach into the American colonies and the early Republic.

Recourse to arbitration has not always been satisfying, yet for the most part it has attracted participants because of four recognized attributes: speed, economy, informality, and finality. Other attributes can also be identified, such as the opportunity to participate in the selection of the arbitrator, including those with special qualifications, and the confidentiality of the process, at least in the private sector. I would add two more attributes that may be somewhat surprising – the availability of discovery and the capacity for handling cases of considerable complexity. Of course, not all of these attributes have been present during all phases of the evolution of the process.

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