As compared with the formal pleadings, massive discovery, aggressive motion practice, and endless appeals of litigation, arbitration is undoubtedly more efficient as a dispute resolution mechanism. However, efficiency is only one of many advantages of arbitration. Arbitration empowers disputing parties, promotes individual autonomy and cooperation, and curtails the power of government in the process. Still, the state should not wholly limit its involvement in arbitral processes; the courts do and should have a substantial role in determining the enforceability of arbitration agreements and awards in a few select contexts. Overall, courts should enforce arbitration agreements and only limit enforceability that are vulnerable to contract defenses like fraud, duress or illegality. Courts should also monitor arbitration to ensure that arbitrators properly enforce the intent of the contracting parties, and if they fail at this task, there may be necessary judicial review for errors of law. However, the state should be hestitent to tamper with arbitration processes beyond this point. This approach maximizes individual autonomy and cooperation while minimizing governmental interference.
A Model for Arbitration: Autonomy, Cooperation and Curtailment of State Power,
26 Fordham Urb. L.J. 167
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