You Can Have Your Day in Court-But Not Before Your Day in Mandatory, Nonbinding Arbitration: Balancing Practicalities of State Arbitration

Author:Amberlee B. Conley
Position:J.D. Candidate, The University of Iowa College of Law, 2019; B.A. The University of Arizona, 2015
Pages:325-351
SUMMARY

Mandatory, nonbinding civil arbitration programs have existed for decades as a means of reducing the workload of crowded court systems. Many state laws either proscribe the details of their state's program or allow their courts to decide the specifics. Despite their longstanding presence, many of the programs are not designed to optimize the balance between efficiency and fairness. The programs... (see full summary)

 
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You Can Have Your Day in Court—But
Not Before Your Day in Mandatory,
Nonbinding Arbitration: Balancing
Practicalities of State Arbitration
Amberlee B. Conley*
ABSTRACT: Mandatory, nonbinding civ il arbitration programs have
existed for decades as a means of reducing the workl oad of crowded court
systems. Many state laws either proscribe th e details of their state’s program or
allow their courts to decide the specifics. De spite their longstanding presence,
many of the programs are not designed to optimize the balance between
efficiency and fairness. The programs are hindered by three overarching
concerns: the fact that they are mandatory, supposedly nonbinding, and not
always more efficient than a court proceeding. Moved by these concerns, the
current programs often vary in jurisdictional limits, qualifications of
arbitrators, and the ease of app eal. This Note discusses the ad vantages and
pitfalls of these programs, then suggests that state legislatures redraft th eir
laws to include in these programs the fa ctors most likely to offer plaintiffs an
economical, reliable alternative to the over-crowded court system. These factors
include a $50,000 jurisdictiona l limit, required training for arbitrators, case
assignment based on subject-ma tter expertise of arbitrators, and a carefully
drafted disincentive to appeal an arbitra l decision.
I. INTRODUCTION ........................................................................... 326
II. THE HISTORY AND STRUCTURE OF MANDATORY,
NONBINDING ARBITRATION PROGRAMS....................................... 328
A. THE HISTORY OF ARBITRATION IN THE LAW ............................ 330
B. STATE-MANDATED ALTERNATIVE DISPUTE RESOLUTION
PROGRAMS IN SPECIFIC AREAS OF THE LAW.............................. 333
C. MANDATORY, NONBINDING ARBITRATION PROGRAMS
FOR CIVIL SUITS ..................................................................... 334
1. Maricopa County, Arizona .......................................... 335
* J.D. Candidate, The University of Iowa College of Law, 2019; B.A. The University of
Arizona, 2015.
326 IOWA LAW REVIEW [Vol. 104:325
2. Cook County, Illinois ................................................... 336
3. King County, Washington ........................................... 337
III. THE PROBLEMS WITH MANDATORY, NONBINDING CIVIL
ARBITRATION PROGRAMS ............................................................ 338
A. OVERARCHING PROGRAM CONCERNS ...................................... 338
1. The Consequences of “Mandatory” Arbitration ......... 339
2. The Consequences of “Nonbinding,” “Private”
Proceedings .................................................................. 340
3. The True Costs of Mandatory, Nonbinding
Arbitration ................................................................... 340
B. PROGRAM-SPECIFIC CONCERNS ............................................... 342
1. Jurisdictional Limits ..................................................... 342
2. Arbitrator Qualifications ............................................. 343
3. Appeals Process ............................................................ 345
C. ISSUES APPLIED ..................................................................... 346
IV. SOLUTION ................................................................................... 347
A. STATE LEGISLATURES SHOULD PROVIDE PROGRAM
STRUCTURE IN DETAILED STATUTES ........................................ 348
B. STATE LEGISLATURES SHOULD ADOPT EFFICIENT AND
FAIR PROGRAM SPECIFICATIONS .............................................. 348
1. Ideal Jurisdictional Limit ............................................. 349
2. Ideal Arbitrator Qualifications .................................... 349
3. Ideal Appeals Process .................................................. 350
V. CONCLUSION .............................................................................. 351
I. INTRODUCTION
Imagine a citizen has lost around $20,000 at the hands of a wrongdoer
in a landlord-tenant dispute. The citizen looks to the law, believing it will
provide justice. Raring for their day in court, the cit izen is deflated to discover
that they must instead attend a mandatory, nonbinding arbitration
proceeding before stepping foot in the courtroom. The citizen obliges and
pays a steep fee for legal representation. However, the citizen is further
distressed to learn that the court-appointed arbitrator has neither experience
as an arbitrator nor experience in landlord-tenant law. As a result, the
arbitrator erroneously enters an award for the opposing party, leaving the
citizen longing for a judge to review the decision. However, the citizen
discovers that an appeal will lead to increased risks of court-imposed fees as
well as the continued cost of legal fees. At this point, the citizen either
(1) does not have the funds necessary to pursue an appeal, or (2) could
appeal, but would risk incurring court fees exceeding his $20,000 loss. This

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