Arbitration and the ADR Influences

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 212-237

212

CHAPTER 5

ARBITRATION AND THE

ADR INFLUENCES

A. INTRODUCTION

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

213

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.

B. THE PROCESS OF ARBITRATION:

KEY FEATURES

Arbitration has a long lifeline. Frances Kellor’s introduction to the his-

tory behind the American Arbitration Association

1

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).