A colleague posted that she just finished writing her awards as an arbitrator in two cases. “At least they stayed out of court” she said.

The choice to arbitrate reflects the particular belief that court is a thing to stay out of.

People like me have been motivated to provide alternatives like mediation because of our dissatisfaction with the court system. We just don’t think that the adversarial process the court uses is best for everybody. It’s geared toward someone else making a decision that’s then imposed on the parties. Instead, mediation is a collaborative process; the parties make their own decisions about how to resolve their disputes themselves.

But the choice to arbitrate, based on a belief that court is a thing to stay out of, says much more than that. It goes deeper than that. And it’s more damning than that.

In this case it’s being said by the person who is the arbitrator: the one imposing her decision on the parties. And the parties have been through an adversarial process to make their case to her: presenting facts in evidence and arguments on the law why they should be awarded what they’re asking for. That’s exactly what the courts do. And yet, this arbitration was more satisfactory for them. “At least they stayed out of court.”

It says that even in the business of deciding cases for others, our court system is failing. Even when parties choose to use an adversarial process, and choose to have someone else decide it for them, they’d rather have an arbitrator do it than a judge.

So the problem is not so much with what a court does, but with how a court does it.

That’s a sad commentary for sure.

photo credit: Sam Howzit via photo pin cc

This entry was posted on Tuesday, August 7th, 2012 at 7:42 am and is filed under Arbitration, Litigation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.