I don't want no stinking jury

The Arbitrator at work
The Arbitrator at work




Last week, we talked about the drama writers can find in cases that settle out of court, and we focused on mediation.  Today, we will look at the other major form of alternative dispute resolution (ADR) know as arbitration.

Arbitration has been the darling of the American legal system for the last ten years or so. It is a formal proceeding in which the parties make an end run around the whole judicial system, insulate themselves from a jury of their peers and conduct their business in the secrecy of a backroom.

I once heard a federal judge say from the bench that he thought the only time anyone would agree to arbitration was “if the fix was in.”

He was right.

So, what is arbitration? It is a form of resolving disputes where the parties submit to the authority of an arbitrator whose decisions carry the force of law and decide a case once and for all. The arbitrator is usually a lawyer who becomes God.


If you ever take the time to read one of those notices you receive occasionally from your credit card company, you will find in the fine print an “arbitration clause.”  This clause requires you to submit any dispute you have pertaining to your credit card account to arbitration. Similar clauses appear in all sorts of commercial documents. The courts enforce them,too.  In other words, if you signed a piece of paper when you bought your home, and it said that any disputes about the transaction would be resolved through arbitration, then when you have a dispute, you are going in front of an arbitrator, not a judge at the courthouse.

Proponents of arbitration, usually large corporations, say the process is cheaper and more efficient than the legal system. This despite the fact that a citizen can pay a filing fee of a few hundred dollars at the most, and have his case heard before a sitting state or federal judge.

In an arbitration, the parties pay a filing fee that may be several thousand dollars, and they pay the salary of the arbitrator while he works on the case.  In the last arbitration I participated in, the arbitrator received several hundred thousand dollars and the case dragged on for several years.  Fast and efficient, huh?

If the case doesn’t settle, the arbitrator conducts the trial, and makes the final decision.  No jury, no day in court. His decision is subject to appeal on only a very limited basis, primarily if the losing party can show that the arbitrator was in bed with the other side.

Sounds kind of un-American and anti-democratic, doesn’t it?

But, that’s the way it is.

So, if you want to write a realistic legal thriller, put your hero’s case in arbitration. Create a heavy-handed arbitrator who sleeps through  the trial.  Parade the evidence in that proves your case, and have the arbitrator dismiss it out-of-hand. Make the person in the right always come out on the wrong end of the stick and have nowhere to turn.

That’s realistic, and that’s conflict.  What more could a writer want?

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