Copyright (c) 2007 Nevada Law Journal
Nevada Law Journal
SYMPOSIUM - RETHINKING THE FEDERAL ARBITRATION ACT: AN EXAMINATION OF WHETHER AND HOW THE STATUTE SHOULD BE AMENDED: ARTICLE: The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution
8 Nev. L.J. 427
Thomas J. Stipanowich*
Arbitration law is implicitly founded on a procedural model involving binding adjudication of disputes by a private tribunal pursuant to an agreement. 1 Today, however, this "classic" model of arbitration is but one - albeit highly important - alternative among a growing number of process templates for resolving domestic and international disputes. 2 These include mediation 3 and many forms of third-party evaluation or nonbinding adjudication, 4 multi-step processes or integrated conflict management programs, 5 and hybrids such as "med-arb" and "arb-med." 6 Some are consensual approaches; 7 others are mandated as part of a government regulatory scheme. 8
With the proliferation of dispute resolution alternatives have come questions about the legal enforceability of contractual agreements to submit disputes to a process, the implications of a failure to comply with such agreements, or the consequences of an agreement or decision reached through a process. There are also important collateral issues involving the powers and duties of third party arbitrators, mediators, and other "interveners" or "neutrals," including their obligations to disclose information regarding potential conflicts of interest, their ability to direct the production of testimony or documents and make other procedural decisions, and the extent of their immunity from legal process. Finally, there are issues about the confidentiality of information communicated during the process, its admissibility as evidence in other legal or administrative proceedings, and its safeguarding from the prying eyes of third parties.
Additional complexities attend the widespread and growing use of multi-step dispute resolution ...
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