The devil is in the details: How arbitration system design and training facilitate and inhibit repeat‐player advantages in private and state‐run arbitration hearings

Abstract

AbstractThis article demonstrates that arbitration system design and the training that arbitrators receive shape the extent to which repeat players gain advantages in arbitration hearings. While prior arbitration research does suggest that arbitrator training matters, this is the first article to show how it matters, as we observe actual arbitration hearings in private and state‐run arbitration systems in two states. Our comparative analysis links three literatures interested in how seemingly interest‐neutral institutions, like disputing forums, serve in practice to reinforce dominant norms, values, and hierarchies: (1) sociolegal studies of repeat‐player advantages in disputing, (2) studies of occupational socialization in educational settings, and (3) neoinstitutional organizational sociology studies of how managerial values influence the way in which organizations construct law. We bridge these literatures by showing how arbitrator system design and the occupational socialization that arbitrators receive in private arbitration are primary mechanisms through which managerial values influence the arbitration process, ultimately providing a pathway for repeat‐player advantages in hearings. Because our analysis compares two distinct arbitration systems, we identify variation in these processes and offer preliminary but tangible policy recommendations for the design and implementation of arbitration systems that best protect civil and consumer rights within arbitral forums that the Supreme Court continually upholds.