Consensus Arbitration: A Negotiation‐Based Decision‐Making Process for Arbitrators

Abstract

In reaching their decisions, arbitrators are currently expected to act like judges by listening fully to both sides and then withdrawing to write the final and complete decision. But because of some key differences between their roles, I argue, arbitrators and judges should exercise completely different styles of decision making. Unlike judges, who make decisive rulings in order to enforce the law, arbitrators are empowered and chosen by the parties themselves to handle specific disputes or govern continuing relationships. Instead of shifting a negotiated process into an authoritative one, arbitrators have the capacity to solicit input from parties as they craft the award. Under a new model of arbitration that I call “consensus arbitration,” arbitrators would facilitate negotiation between the parties but retain the power to break impasses with partial, incomplete decisions, behaving more like facilitators than judges.