Arbitration promises a lot. Shorter and cheaper dispute resolution in an era of rising legal costs. While “access to justice” is rightly reserved for discussing barriers to significant aid for the poor and the lower middle class, it is a testament to how bad things have happened that businesses have to take into account. Consider the high price of litigation nowadays. Some people don’t like to talk about this because they think it distracts from traditional access to justice, on the other hand, if Fortune 500 companies are in litigation twice, imagine how insurmountable the costs are for people. ordinary.
The downside is the rise of binding arbitration agreements that allow companies to rob access to the judiciary from the people they confuse. The Roberts Court has made blocking the doors of the court the centerpiece of its case law. It’s not that there is anything inherent wrong with arbitration, but for many litigants challenging corporate goliaths, being forcibly diverted to a less formal procedure presided over by retired corporate lawyers leaves them without much sense of justice. And it is irrelevant whether the procedure actually gives the applicant a short job - if he feels that he is not receiving justice, he is not gaining the public’s trust.
Balancing the need for alternative dispute resolution mechanisms with public caution is challenging the next generation.
That’s probably why I thought about it after talking to New Era ADR CEO Collin Williams. We were talking about the company and how a group of former GCs from the startup world came together to build a platform to help companies efficiently resolve digital disputes under one roof - a kind of “telehealth for the law”. As you can imagine, this is one of those ideas that would have faded under the collective lack of imagination of lawyers until the pandemic forced the industry to face the possibilities.
New Era ADR works with referees from the National Academy of Dedicated Neutrals, but Williams explained a vision of expanding the group of qualified referees to improve discipline. “The current world of referees is dominated by retired practitioners. That means, from a demographic point of view, older white men. In order to create a sustainable version of efficient arbitration, we need to raise the next generation, ”he told me. After all, the type of disputes leading to arbitration these days involve a high dose of technological struggles and discrimination claims - diversity across age, gender and racial lines adds to the process.
Williams said the company is encouraging a new way to become an arbitrator beyond retirement secondary agitation - not that those arbitrators are not yet important to the process, but not exclusively. Going to companies and encouraging younger partners and advisors, where we know that various high-quality lawyers are often sent to the company to develop new revenue streams, building a business book around presiding over arbitration. And while referees will need at least the level of experience that comes with a partner-level resume, law schools also have a role to play, planting the seed that this could be a realistic career. To point students in the right direction to acquire the skills they could gain as a referee with a respectable business card that serves as a neutral, say, 15 years.
Because the price of litigation will only increase, and the pressure on legal departments to control costs will increase with that.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you are interested in law, politics and a healthy dose of college sports news. Joe is also the CEO of RPN Executive Search.