Article by Edward Brunet
“Folklore arbitration,” characterized by final and speedy fact-based awards entered by expert arbitrators after little prehearing process, has been the principal arbitration model. Several recent developments, however, have combined to undermine the folklore model and to replace it with a more innovative and flexible “contract model of arbitration.” The contract model is rooted in market-based demand from sophisticated users of the arbitration option and is supplied by major arbitration providers who now make possible arbitrations containing judicialized features such as discovery, prehearing conferences, and written opinions based on legal principles. Supreme Court cases make arbitration a matter of contract and provide a framework that allows parties to create an arbitration process that bears little resemblance to folklore arbitration. Recent cases upholding parties' contracts that empower courts to review arbitral awards for legal error are consistent with the text and legislative history of the Federal Arbitration Act and mark the end of the folklore model, which viewed arbitration awards as final and binding. In this new era, parties who desire features of the folklore model simply need to contract for such procedures.
About the Author
Edward Brunet. Henry J. Casey Professor of Law, Northwestern School of Law of Lewis & Clark College.
Citation
74 Tul. L. Rev. 39 (1999)