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

78 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1
misconduct or other disregard of duty.” 321
L. Is the Process of Arbitration to Achieve a Final Decision or to Seek
Truth and Find Justice
Justice Thurgood Marshall proposed that, “the governing principle
of a humane society and a good legal system . . . [is to] recognize the
worth and importance of every person . . . [and] be perceived by all the
people as providing equal justice.” 322 Ultimately, what should an
arbitrator do? Is an arbitrator only to interpret the four corners of the
contract? Or, is the arbitrator’s role to find truth and justice? Is the
process of arbitration simply a process to lead to a final decision; or is it
a process to seek truth and find justice?
X. CONCLUSION
Thomas Jefferson wrote, “I know no safe depository of the ultimate
powers of the society but the people themselves; and if we think them
not enlightened enough to exercise their control with a wholesome
discretion, the remedy is not to take it from them, but to inform their
discretion.” 323 Arbitration puts power in the hands of the parties in the
conflict. The parties are responsible for drafting the arbitration clauses,
which determine the who, what, when, where, how, and why of settling
disputes.
Arbitration is intended to be an economical process. But
“[i]nexpensive, expeditious and informal adjudication is not always
synonymous with fair and just adjudication.” 324 Arbitration must be an
equitable process equivalent to litigation. 325 In the end the AAA Code of
321. Ehlert v. W. Nat’l Mut. Ins. Co., 207 N.W.2d 334, 336 (1973) (quoting
Cournoyer v. Am. Television & Radio Co., 83 N.W.2d 409, 411 (1957)).
322. Michael Z. Green, Preempting Justice Through Binding Arbitration of
Future Disputes: Mere Adhesion Contracts or a Trap for the Unwary Consumer, 5
LOY. CONSUMER L. REV. 112 (1993) (citing Mr. Justice Marshall Lives on in His
Words, NAT’L L.J., Feb. 8, 1993, at 8 (Statements by Justice Thurgood Marshall at
the Eighth Conference on the Law of the World, (1977)).
323. Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820),
cited in Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court,
115 HARV. L. REV. 4, 86 (2001).
324. Harry T. Edwards, Alternative Dispute Resolution: Panacea or Anathema?,
99 HARV. L. REV. 668, 679 (1986).
325. See AAA, Code of Ethics, supra note 101, at Canon I(A). Canon I(A) of the
AAA Code of Ethics states: