Arbitration Archetypes for Enhancing Access to Justice

Abstract

In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants’ access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties’ access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties have a greater opportunity to be heard. However, not all twenty-first-century arbitration proceedings share these characteristics. Rather, today, arbitration comes in many forms and can be administered by different forums and procedural rules with a great variation in how cheap, how fast, and how procedurally and substantively fair the process really is. Whether a particular form of arbitration enhances access to justice depends greatly on the characteristics of the process in a particular forum or industry. This Article offers a simple framework to determine which types of arbitration truly enhance access to justice and which types do not. The Article also aims to identify a few “arbitration archetypes” that are more likely to support the claim that arbitration enhances parties’ access to justice.