Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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I. INTRODUCTION

Arbitration lawyers often talk about third parties (whether courts, governments, or other lawyers) as being pro-arbitration or anti-arbitration.  Presumably most arbitration lawyers are pro-arbitration.  Self-preservation is a safe bet.  But this also begs a question that Professor George Bermann has asked: what does it mean to be pro-arbitration? (George Bermann, What does it mean to be “pro-arbitration”?, Arbitration International, 2018, 34, 241–353). 

I suggest that arbitration lawyers can be characterized as more or less pro-arbitration based on how much they conduct themselves in a manner that promotes arbitration as a more or less favorable dispute resolution mechanism.  It is not always clear whether certain traits often associated with arbitration make arbitration more or less favorable.  For example, promoting confidentiality does not necessarily make arbitration better than litigation—some may prefer it, but it does not always assist parties (or the public) in achieving a better outcome to the dispute.  But efficiency is a trait that most will agree is a desirable trait for a dispute resolution system.

Parties and governments have designed systems to help resolve disputes because people and entities desire to have their disputes resolved.  They do not wish to be stuck in disputes in perpetuity.  And there is no societal good that comes from disputes remaining unresolved.  It wastes time, money, human resources, and most importantly, it delays justice.  So efficiency is a trait that pro-arbitration lawyers (including arbitrators) should promote if they wish to promote arbitration as a more favorable dispute resolution mechanism to other options.