NCJ Number
64382
Journal
Arbitration Journal Volume: 32 Dated: (MARCH 1977) Pages: 1-7
Date Published
1977
Length
7 pages
Annotation
COMPARED TO THE JUDICIAL MODEL OF DISPUTE SETTLEMENT, THE ARBITRATION MODEL IS QUICKER, LESS COSTLY, AND SATISFACTORY IN MANY CASES.
Abstract
THE ANGLO-SAXON JUDICIAL SYSTEM OF DISPUTE SETTLEMENT EMPHASIZES PROCEDURAL FAIRNESS AND RELIES HEAVILY ON THE ADVERSARY SYSTEM. OPPOSING LAWYERS PRESENT EVIDENCE AND ARGUE QUESTIONS OF LAW TO AN APPOINTED OR ELECTED JUDGE. FACTUAL DISPUTES MAY BE RESOLVED BY A JURY OR A JUDGE; LEGAL QUESTIONS ARE RESOLVED BY A JUDGE. IN ALMOST ANY DISPUTE INVOLVING A SIGNIFICANT AMOUNT OF PROPERTY, AND IN ANY CRIMINAL PROSECUTION, THE LOSING PARTY INVARIABLY HAS THE RIGHT TO APPEAL THE COURT'S DECISION TO A HIGHER COURT. IN THE APPELLATE COURT, THE PREPARATION OF A WRITTEN OPINION JUSTIFYING THE LOWER COURT'S DECISION IS IMPORTANT BECAUSE THE JUDICIAL PROCESS OF DECIDING A DISPUTE SERVES TWO PURPOSES: (1) SETTLING DISPUTES BETWEEN THE PARTIES AND, (2) IN APPELLATE COURT, ADDING TO THE BODY OF CASE LAW WHICH ESTABLISHES THE RIGHTS AND CLAIMS COURTS MUST PROTECT. HOWEVER, THE JUDICIAL MODEL OF DISPUTE SETTLEMENT IS VERY COSTLY BECAUSE OF ATTORNEY'S FEES AND ASSOCIATED EXPENSES, AND VERY TIME CONSUMING (THE JUDICIAL PROCESS USUALLY TAKES SEVERAL YEARS). ARBITRATION, AS AN ALTERNATIVE, NECESSARILY INCORPORATES MANY ASPECTS OF THE JUDICIAL MODEL. THE RELEVANT FACTS HAVE BEEN ESTABLISHED OVER A PERIOD OF TIME, THEY HAVE NOT TAKEN PLACE IN THE PRESENCE OF THE ARBITRATOR, AND EVIDENCE MUST THEREFORE BE PRESENTED BY WITNESSES AND DOCUMENTS. ARBITRATORS HAVE MUCH WIDER LATITUDE THAN JUDGES IN KINDS OF EVIDENCE. ALSO, ARBITRATION PRODUCES A SETTLEMENT BETWEEN INDIVIDUAL LITIGANTS AND IS NOT CONCERNED WITH A BODY OF DECISIONAL LAW. DUE TO DOCKET CONGESTION, THE COURTS THEMSELVES SEEM TO BE MOVING TOWARD THE ARBITRATION MODEL OF DISPUTE SETTLEMENT BY ISSUING SHORT 'ORDERS' THAT DEAL ONLY WITH THE DISPUTE BETWEEN THE INDIVIDUAL LITIGANTS. THIS TREND SUGGESTS THAT THE ARBITRATION MODEL IS SATISFACTORY IN MANY INSTANCES.