Arbitration and the ADR Influences

AuthorAndrew J. Pirie
ProfessionFaculty of Law. University of Victoria
Arbitration was not at the forefront in the modern emergence of alter-
native dispute resolution for obvious reasons. The process of arbitra-
tion, in which parties agree or are compelled to submit their dispute to
a neutral person or group of persons whose function is to receive
proofs and arguments more or less formally and then render a binding
decision based on objective standards, resembled too closely for com-
fort the process of court adjudication. Consider a standard clause in
many arbitration contracts:
Any controversy or claim arising out of or relating to this contract, or
the breach thereof, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of . . . , and judgment upon the
award rendered by the arbitrator(s) may be entered in any court hav-
ing jurisdiction thereof.
ADR’s early emphasis on mediation and other forms of consensual
decision making and the implicit and often explicit criticisms that ADR
directed at the courts meant that arbitration initially did not fit easily
into the new ADR vocabulary. Arbitration did not appear to be a pro-
cess that could further ADR goals.
However, as discussed in chapter 1, with the meaning of alternative
dispute resolution no longer restricted to non-court activities, the goals
of ADR open to broader interpretation, and with the process of arbitra-
Arbitration and the ADR Influences
tion more closely examined and understood, arbitration can no longer
be regarded by ADR students and practitioners as a separate entity to
be studied and applied primarily in the special contexts of labour rela-
tions, commercial matters, or international trade. In fact, for the ADR
student or practitioner, the subject of arbitration presents unique
opportunities to consider the ways in which this process fits within,
and contributes to, the developing meaning of alternative dispute reso-
lution; recent developments in the use of arbitration to resolve disputes
beyond arbitration’s more traditional boundaries; when to resort to the
arbitration process to deal with important controversies or conflicts;
the knowledge and skills required for this adjudicative process; and the
future potential of this disputing method in ADR developments.
Arbitration has a long lifeline. Frances Kellor’s introduction to the his-
tory behind the American Arbitration Association
illustrates the stay-
ing power and values that have been hallmarks of arbitration through
the centuries.
Of all mankind’s adventure in search of peace and justice, arbitration
is among the earliest. Long before law was established, or courts were
organized, or judges had formulated principles of law, men had
resorted to arbitration for the resolving of discord, the adjustment of
differences, and the settlement of disputes.
Out of the dim recesses of fable and mythology, it appears that
upon Mt. Ida the royal shepherd Paris was called upon to deliver a
famous award. The dispute concerned the competing claims of Juno,
Pallas Athene and Venus for the prize of beauty. All other means of
settlement having failed, Paris, by agreement of the parties, decided
the issue.
If the course of arbitration, begun presumably on Mt. Ida, could
be traced through the centuries, it would be found in the most primi-
tive society as well as in modern civilization. Commercial arbitration
was known to the desert caravans in Marco Polo’s time and was a
common practice among Phoenician and Greek traders.
1F. Kellor,
American Arbitration
(New York: Harper and Brothers Publishers, 1948).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT