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

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,