By Michael McIlwrath
On March 6, 2012, the New York Times published an Op-Ed article by Prof. Amalia D. Kessler of Stanford Law School criticizing obligatory arbitration for denying access to justice, especially in the context of consumer and employment law disputes.
Here in Europe, arbitration generally cannot be made into an obligatory process for many types of disputes as it is in the United States. In Italy, for example (and it’s the same in France and Germany), an employer cannot require its employees to opt out of their right to be heard in court by asking them to submit disputes to arbitration.
Interestingly, however, the sentiments Prof. Kessler expresses against arbitration resemble what we hear for opposing another form of out-of-court dispute resolution: mediation. The same constituencies are discussed, and the arguments nearly identical.
Some years ago, as a member of the CPR Institute’s European Advisory Committee, I was part of a small group that worked with the European Commission to draft a European ADR Code of Conduct. In our drafting sessions, the voices most against mediation came principally from representatives of employment law and consumer protection groups, as well as bar associations concerned about lawyers losing work via a diminished caseload. Opposition to mediation comes from the many of the same quarters today.
In fact, the arguments are so similar that you could replace the word “arbitration” with “mediation” in Prof. Kessler’s article and, with only one or two exceptions, render it fit for publication as an editorial opposing mediation in the legal journal of any European country where the process is being introduced. As a good example, Prof. Kessler’s criticism of “…institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law,” is exactly what was voiced by Italian lawyers who went on strike several times over the past year. They opposed exactly this form of justice (especially the “lawyer-free” part).
Of course, mediation is not arbitration, and a failure in mediation does not deny a party to their day in court (or arbitration, as the case may be). As those of us who believe in the mediation process find ourselves explaining and again, the things that Prof. Kessler identifies as being wrong with arbitration can be seen as advantages of mediation. When the alternative is paying for lawyers, and facing years of delay and uncertainty that many justice systems struggle to provide through the courts, why not let parties have their disputes resolved with the facilitation of respected leaders who persuade them of the value of an equitable compromise in an inexpensive process?
Sounds good to me.
MICHAEL MCILWRATH is Senior Counsel, Litigation, for the GE Oil & Gas Division in Florence, Italy. His experience in international arbitration includes representing the company in disputes under the rules of various international and regional arbitration institutions and under ad hoc procedures around the world, and in coordinating the activities of outside counsel in domestic court and arbitral proceedings. He has published numerous articles in the fields of international arbitration, mediation, and negotiation, and is co-author, with John Savage, of International Arbitration and Mediation: A Practical Guide (Kluwer Law International).
Michael is a member of the European Advisory Committee of CPR, and acted as an industry representative to the European Commission (Justice) in the creation of a European ADR Code of Conduct. He was Chair of the International Mediation Institute (IMI), in 2009. In addition, he was the co-vice chair with mediator Judith Meyer (and chair, Singapore ambassador at large Tommy Koh) of the IMI Independent Standards Committee. He is also a member of the board of directors of the National Center for Science Education, in Oakland, California.