2006/Vol. 5 No.1 - Hamline Law - Hamline University

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4 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 commercial disputes of the Middle Ages. 3 In early America, the use of arbitration to resolve disputes predates the United States government and, thus, the establishment of the federal 3. DENNIS NOLAN, LABOR ARBITRATION LAW AND PRACTICE 2-3 (West Publishing Co. 1979); see Randy Linda Sturman, House of Judgment: Alternative Dispute Resolution in the Orthodox Jewish Community, 36 CAL. W. L. REV. 417, 418 (2000). For thousands of years, Jewish communities have made use of an alternative dispute resolution process known as the Bet Din, meaning “house of judgment.” Id. The Bet Din involves resolution of a dispute by a single rabbi or a panel of three rabbis. Id. Unlike arbitration, the parties have to agree to the process, since there is generally no contractual clause involved. Id. The parties agree to arbitrate for various reasons, such as “social pressure or religious convictions.” Id. The purpose of the Bet Din is the resolution of disputes by peers or other members of the Jewish community who have similar cultural beliefs and values. Id. For a discussion of arbitration in the Middle Ages, see Michael Clanchy, Law and Love in the Middle Ages, in DISPUTES AND SETTLEMENTS: LAW AND HUMAN RELATIONS IN THE WEST 52 (John Bossy ed., Cambridge Univ. Press 1983). The approach used by Louis IX in the Middle Ages to settle disputes is described by the following romanticized passage: The atmosphere is relaxed: the king sits at the foot of his bed, or in summer with his back against an oak in the Bois de Vincennes, or on a carpet in the Jardin de Paris without any head covering other than a cap of white peacock’s feathers. Litigants come forward without formality and the king himself asks them, ‘Why don’t you take what our people offer you?’ When they reply that the offers are too little, the king does everything he can to ‘put them on a right and sensible course.’. . . [T]he method of adjudication is one of ‘delivering’ the litigants from their toils through discussion and bargaining. Id. For a discussion of arbitration in Islamic law, see Sarvenaz Bahar, Khomeinism, the Islamic Republic of Iran, and International Law: The Relevance of Islamic Political Ideology, 33 HARV. INT’L L.J. 145, 167 (Winter 1992) (stating that arbitration “found a place in the verses of the Qur’an as a respected Muslim tradition: O you who believe! Obey Allah, and the Apostle and those in authority among you; if you differ, bring it before Allah and the Apostle, if you believe in Allah and in the last day. (Qur’an 4:59)”); Charles N. Brower & Jeremy K. Sharpe, International Arbitration and the Islamic World: The Third Phase, 97 AM. J. INT’L L. 643, 643 (July 2003). Shortly after the founding of Islam, the Treaty of Medina of 622 A.D. (a security pact among the city’s Muslims, non-Muslim Arabs, and Jews) called for arbitration of any disputes by the Prophet Muhammad. Indeed, the Prophet himself resorted to arbitration in his conflict with the tribe of Banu Qurayza. Muslim rulers subsequently followed his example, notably in the disastrous arbitration between Muawiyah (the governor of Syria) and the Caliph Ali (the Prophet’s son-in-law) in 659 A.D. . . . [which] made permanent Islam’s enduring split into the Shiite and Sunni branches. Id.
2006] ARBITRATION: THE BASICS 5 court system by the U.S. Constitution. Native American tribes used a hybrid form of arbitration/mediation (Arb-Med) as a tool for dispute resolution. 4 Additionally, religious communities in the colonial period developed many creative dispute resolution mechanisms such as “gospel order,” “brotherly fashion,” and “arbitration” for resolving conflicts. 5 The first U.S. President, George Washington, mandated arbitration rather than litigation if his will was challenged. 6 Arbitration has been used in 4. NOLAN, supra note 3, at 2-3; see, e.g., Matt Arbaugh, Making Peace the Old Fashioned Way: Infusing Traditional Tribal Practices in Modern ADR, 2 PEPP. DISP. RESOL. L.J. 303, 303 (2002). The traditional method used by many Native Americans to resolve disputes is known as peacemaking. Id. The focus of the peacemaking process is on saving relationships and finding a solution that is acceptable to all. Id. The goal is to solve the problem causing the dispute rather than on awarding remedial measures or punishing the parties. Id. at 309. See, e.g., Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 TULSA L.J. 1, 4 (1997). Certain Native American Tribal Courts have incorporated traditional mediation into modern legal institutions. Id. The Navajo Peacemaker Court, for example, implements a process— [D]irected by a mediator, who acts to guide and encourage the parties to resolve their dispute. The process relies on parties’ participation and their commitment to reaching a solution, rather than on the imposition of a judgment by an impersonal decisionmaker in order to reach a successful conclusion. Id. 5. Robert M. Ackerman, Disputing Together: Conflict Resolution and the Search for Community, 18 OHIO ST. J. ON DISP. RESOL. 27, 46-47 n.58 (2002). In Puritan communities, arbitration was the first step in a multistage process to resolve disputes. Id. If arbitration failed, the parties then relied on elders, the minister, or others in the community to help them come to a resolution. Id. The Quakers had a similar process called a “gospel order.” Id. This process required parties to come to an agreement in a “brotherly fashion.” Id. If this method failed the parties would submit the dispute to arbitration by disinterested members of the community. Id. Punishment for failure to accept the ruling of the arbitrators resulted in excommunication. Id. 6. James R. Deye & Lesly L. Britton, Arbitration By the American Arbitration Association, 70 N.D. L. REV. 281, 289 n.52 (1994) (citing MARTIN DOMKE, DOMKE ON COMMERCIAL ARBITRATION at 187-88 (Rev. ed. 1991)). The portion of George Washington’s will providing for arbitration reads: “But having endeavored to be plain and explicit in all the [d]evises—even at the expense of prolixity, perhaps tautology, I hope, and trust, that no disputes will arise concerning them; but if contrary to expectation the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the devises to be consonant with law, my will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one,
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