Arbitration's counter-narrative: the religious arbitration paradigm.

Author:Helfand, Michael A.
Position::Introduction into III. The Doctrine of Arbitration's Counter-Narrative, p. 2994-3022 - Arbitration, Transparency, and Privatization: Contextualizing and Analyzing Recent Developments in U.S. Arbitration Regimes

However, the exclusive focus on this standard narrative has left unexplored a competing arbitral narrative--a counter-narrative of sorts--that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes. The failure to consider this counter-narrative has prevented legal doctrine from accounting for contexts in which arbitration seeks to amplify the autonomy of parties to pursue shared values by resolving their disputes in the arbitral forum.

This arbitral counter-narrative filters into numerous contexts, but it finds its paradigmatic application in the context of religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. These forms of arbitration are embraced not solely because they help to resolve disputes, but also because they enable parties to resolve disputes in accordance with shared religious principles and values. If successfully incorporated into current legal doctrine, this arbitral counter-narrative could unlock the transformative potential of arbitration, enabling parties to employ arbitration not simply as an expedient venue for resolving disputes, but also as an alternative forum for breathing life into mutually shared values.


Arbitration theory and doctrine are dominated by an overarching narrative that conceptualizes arbitration as functionally equivalent to litigation. (1) This narrative views arbitration and litigation as parallel institutions, both providing parties with a method for resolving their dispute. On one side of this equation is litigation, procedurally rigorous but expensive. On the other side is arbitration, faster and cheaper but with fewer procedural safeguards. Both arbitration and litigation, however, ultimately serve the same purpose: dispute resolution.

This standard narrative has been recapitulated repeatedly in a string of recent Supreme Court decisions touting arbitration's streamlined process over the perceived rigors of litigation. (2) And both critics and supporters of arbitration have largely adopted this narrative. Critics bemoan arbitration's failure to provide the procedural safeguards typical of litigation (3) and suggest that the parties' choice to forego litigation often lacks true consent. (4) Supporters of arbitration counter that concerns over consent--or lack thereof--in selecting arbitration over litigation are exaggerated and that parties benefit from arbitration's relative procedural informality, which enables arbitrators to mete out justice faster and more cheaply than courts. (5) Notwithstanding these differences, there is a common thread to these arguments: arbitration and litigation, first and foremost, are both viewed as methods of dispute resolution.

One of the few challenges to this standard narrative suggests that it fails to provide an accurate depiction of litigation. Critics, most famously Owen Fiss and Judith Resnik, have argued that the purpose of litigation is not simply to resolve disputes, but also to promote public values by enabling judges to articulate, interpret, and enforce central legal rules and principles. (6) On this view, however, arbitration is still viewed as merely achieving the more modest objective of resolving disputes between the parties. There is, of course, good reason for this. Parties typically consent to arbitration because it provides an efficient and cheaper method for resolving disputes. (7)

But the law has largely failed to account for a competing arbitral narrative, in which arbitration differs from adjudication because arbitration aims to promote an alternative set of values beyond simply resolving disputes. (8) Indeed, in a wide range of contexts, arbitration serves a "jurisgenerative" function, amplifying the parties' autonomous ability to pursue shared values in the dispute resolution context. (9) Thus, various groups--such as trade associations, ethnic communities, and families (10)--adopt specific procedures to select arbitrators, choose the governing law, and incorporate community norms in order to ensure that their dispute resolution forum reflects the parties' shared values. While techniques and methods vary, these forms of arbitration share a common feature: they all embrace arbitration at least in part because of the values the selected form of arbitration promotes.

Taken together, these forms of arbitration coalesce into an arbitral counter-narrative. This counter-narrative implicitly critiques debates over arbitration's adequacy as a method of dispute resolution, and it encourages us to account for arbitration's broader social benefits. Focusing only on the standard arbitration narrative, which uses litigation as the barometer, misses the transformative purposes around which at least some forms of arbitration are organized. And while most arbitrations fall squarely within the standard arbitral narrative, the failure to account for arbitration's counter-narrative has already led to doctrinal problems--problems that will likely multiply if the exclusive focus on the standard narrative continues. By flattening arbitration doctrine and discounting the contexts in which arbitration is pursued for purposes beyond garden-variety dispute resolution, courts have too frequently, and too unreflectively, adopted the bare equation of litigation and arbitration."

Moreover, even courts that have resisted the bare equation of the purposes of arbitration and litigation have not tried to articulate the ways in which arbitration does differ from litigation. Thus, they have not considered whether there are differences between various forms of arbitration. (11) One of the chief lessons of arbitration's counter-narrative is that arbitration is not monolithic; parties benefit from arbitration when the forum is successful at promoting the unique values shared by the parties. To the extent that courts fail to account for the diversity of arbitration, they also misconstrue the nature of the differences between arbitration and litigation.

All told, then, courts have adopted an either/or strategy: some cases have mistakenly equated arbitration and litigation, while other cases have rejected the equation but without considering the circumstances under which the equation might actually be accurate. In embracing this uniform conceptualization of arbitration, courts have not adequately accounted for either the differences between litigation and arbitration or the internal differences between various forms of arbitration. In short, courts have failed to adequately account for the lessons to be learned from arbitration's counter-narrative.

This failure to consciously consider arbitration in all of its dimensions has led to the development of doctrine that fails to account for the fact that some arbitral for a are geared toward achieving fundamental, transformative objectives that differ from those to which litigation aspires. Courts have become too willing to assume the standard arbitral narrative--that arbitration is simply a method for resolving disputes--and to thereby import rules from the litigation context into the arbitration context. In so doing, courts undermine the ability of various forms of arbitration to promote an alternative set of fundamental values successfully.

In order to correct this narrow focus on the standard arbitral narrative, we must look to the contexts in which arbitration aims to achieve objectives beyond mere dispute resolution--a dynamic perhaps best exemplified in religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. Parties embrace this form of arbitration not solely because it is a useful mechanism for dispute resolution, but because these arbitrations are meant to enable parties to resolve a dispute in accordance with shared religious principles and values. In turn, these principles and values create the framework under which procedural and substantive rules are developed and applied. (13)

These arbitrations are more than expedient attempts to resolve a particular controversy; they are embedded in a much larger communal infrastructure...

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