The Constitutionality of Mandatory Arbitration
| Publication year | 1989 |
| Pages | 455 |
| Citation | Vol. 18 No. 3 Pg. 455 |
1989, March, Pg. 455. The Constitutionality of Mandatory Arbitration
Many articles extoll the virtues of mandatory arbitration, describe its constitutional basis and conclude that preliminary studies show that mandatory arbitration statutes yield excellent results.(fn1) To some, Colorado's Mandatory Arbitration Act(fn2) is seen as a happy addition to this national war on the caseload. There is, however, a more pessimistic view of this emerging scene.
There are serious, unanswered questions regarding the precise constitutional limitations on mandatory arbitration. If there is any trend to be divined from the cases, the trend may well be against statutes that compel arbitration. Compelled arbitration raises serious issues under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and under provisions in many state constitutions guaranteeing the separation of legislative and judicial powers, the right to a jury trial and the right to court access.
Aside from these constitutional concerns, there are serious questions about the effectiveness of mandatory arbitration, as well as its institutional costs. In this author's opinion, mandatory arbitration diverts funds and attention from meaningful reform of the traditional system. The litigation system is in desperate need of reform. The use of arbitration places over this flawed system an entirely new system with the primary goal of discouraging entry into the traditional system. This is akin to discouraging driving because a car needs a tuneup. Furthermore, it seems strange that state legislatures have felt it necessary to make arbitration mandatory if litigants are as enamored of arbitration as some would claim.
Politicians may embrace arbitration as a politically expedient way to handle widespread and justified public dissatisfaction with the traditional judicial system without having to ask their constituents to pay the price for real reform (e.g., higher taxes for more judges, substantial limitations on discovery, more vigorous assessment of attorneys' fees under CRS § 13-17-101 or more rigorous enforcement of the existing rules of civil procedure). Some lawyers like the prospect of arbitration because it offers a chance to expand their traditional legal role by including the role of arbitrator. Some judges may truly believe arbitration will discourage litigants from seeking the more time-consuming and costly process of de novo review. Everyone, it seems, is happy with mandatory arbitration except the litigants who must endure it. In this author's view, it is fortunate that there are constitutional limitations emerging that may put the brakes to this runaway train.
Two Pennsylvania cases are often cited for the proposition that mandatory arbitration statutes do not infringe on the constitutional right to a jury trial or on the right of access to the courts. The first of these was the decision of the Pennsylvania Supreme Court in In re Smith.(fn3) The second was the decision of the Federal District Court for the Eastern District of Pennsylvania in Kimbrough v. Holiday Inn.(fn4)
In re Smith is a particularly interesting case. It involved what appears to be...
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