National Trends in Mandatory Arbitration
| Publication year | 1988 |
| Pages | 1313 |
| Citation | Vol. 07 No. 1988 Pg. 1313 |
1988, July, Pg. 1313. National Trends in Mandatory Arbitration
In discussing dispute resolution, lawyers are maligned at every turn. Timothy Dwight, President of Yale, painted a painful portrait for the graduating seniors of the class of '76:
That meanness, that infernal knavery, which multiplies endless litigation, which retards the operation of justice, which from court to court, upon the most trifling pretenses, postpones trial to glean the last emptying of a client's pocket, for unjust fees of everlasting attendance, which artfully twists the meaning of the law to the side we espouse, which seizes unwarrantable advantages from prepossessions, ignorance, interests and prejudices of a jury, you will shun.(fn1)
Some would say that "blaming the lawyers" is a passing phase, spawned by the litigation crisis of recent years. Unfortunately, these opinions have withstood the test of time---President Dwight's commencement remarks were made in 1776!
In a recent survey of leading business firms in Colorado, Donald O'Connor summarized the findings:
Despite the wide range of companies and industries [surveyed] . . . each of them had the strong opinion that the present system of litigation, with its excessive expense and time consuming procedures, must change.(fn2)
Unfortunately, the study of dispute resolution problems is currently embryonic. There is little information about how and why lawsuits are settled, and less information about the settlement of disputes before they turn into lawsuits.
Obviously, an acceptable form of resolution must be found for a broad range of disputes, without great cost to either the taxpayer or the litigant. This article suggests that mandatory arbitration, in certain cases, is one way to address this problem.
Colorado now has court annexed mandatory arbitration (also called "court ordered" or "court supervised" arbitration). Although the arbitration is not binding, it is much different than older "voluntary arbitration" programs, which have faded into oblivion.
Court annexed arbitration has been adopted by twenty-one other states, the District of Columbia and ten U.S. District Courts.(fn3) In most jurisdictions with mandatory arbitration programs, a common pattern seems to be evolving. Trial courts require arbitration of civil suits up to certain monetary amounts, typically from $25,000 to $50,000, as a precondition for setting on the trial calendar. Cases are referred to arbitrators early, either after initial filing or the joinder of issues.(fn4) Formal preparation for these hearings is kept to a minimum, and only limited discovery is permitted. The hearings are brief and informal, and medical and other reports usually suffice as evidence.(fn5) No transcript or recording of hearings is made. Arbitration verdicts have the force of a court judgment; however, any dissatisfied party may, if he or she chooses, reject that arbitration award and request that the case be calendared for a trial de novo, even though there is a financial disincentive to this request.(fn6)
Variations among the state and federal courts are found with regard to the following specifics: the type of suit; dollar amounts; selection, number and payment of arbitrators; disincentives to pursuing trial; level of involvement of the judge; time of referral to arbitration; who determines eligibility; where hearings are held; and who pays for hearings (taxpayers or litigants).
Arbitration is recognized in Colorado as a "desirable method of resolving disputes, and is to be fostered rather than discouraged."(fn7) Case law of other states is instructive in analyzing legislation typified by the untested Colorado statute. In re Smith(fn8) reviewed the Pennsylvania statute, challenged as a deprivation of the right to a jury trial. The Pennsylvania Supreme Court held that the "requirement of the payment of costs before the entry of an appeal in order to obtain a jury trial" is not an infringement on the constitutional right to a jury trial; mandatory arbitration does not finally determine the rights of persons or property for Seventh Amendment purposes.(fn9)
In Kimbrough v. Holiday Inn,(fn10) the U.S. District Court for the Eastern District of Pennsylvania considered two bases for challenge to arbitration: Seventh Amendment right to a jury trial and Fifth Amendment equal protection. The court upheld the validity of the program on both grounds...
To continue reading
Request your trial