Arbitrators are not judges and arbitration is meant to be a court of law. Explain.

INTRODUCTION

 Arbitrators are not always lawyers, and are usually not judges.  While the parties can request arbitrators with certain qualifications, there are no guarantees about the training and experience of the person who will preside over case.  If anyone seeks arbitration through a reputable organization like the American Arbitration Association, prospective arbitrators are sent to the parties in a panel list with an opportunity to strike those who are objectionable.

 Arbitration is one method of dispute resolution that is available in the private sector and employed by some courts throughout the world. In Lake County, arbitration is mandatory on all civil cases seeking money damages between $10,000-$50,000. Small Claims cases where a jury demand has been filed are also subject to mandatory arbitration. Only lawsuits filed in the Lake County Circuit Court can be heard in the Lake County arbitration program.

 Who are arbitrators?

 Arbitrators usually are attorneys, retired judges or businesspeople,who have been approved, trained, and certified to serve on the panel with expertise in a particular field such as collective bargaining, negotiation, and agreement process etc. Arbitrators are also using other forms of dispute resolution, including executive minitrials, early neutral evaluations, and summary jury trials.[1]

An arbitrator identifies in advance, the issues to be resolved, the scope of the relief to be awarded, and many of the procedural aspects of the process.[2] Arbitrators are selected on a random basis, for service on a specific date. Once at the Arbitration Center, the panels review the files for any conflicts and also to become familiar with the issues in the lawsuit.[3] An arbitrator has a responsibility not only to the parties but also to the process of arbitration itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved.

Skill required for arbitrators:

• Arbitrators must have knowledge of different mediation techniques and processes as well as knowledge of dispute resolution methods in order to be able to do their jobs successfully.
• They also must have good communication and listening skills and the ability to run successful meetings and negotiate a solution to a dispute.
• The ability to evaluate large amounts of information that are sometimes complex is essential.
• Good writing skills and technical problem-solving skills also is a must.
• Arbitrators, who specialize in a particular area, such as construction or insurance, may need to have knowledge of that industry and must be able to relate well to people from different cultures and backgrounds.

 

OBLIGATORY TRAINING FOR ARBITRATORS:

• Arbitrators are trained through independent mediation programs, national and local mediation membership organizations, and postsecondary schools. To practice in State-funded or court-funded mediation programs, mediators usually must meet specific training or experience standards, which vary by State and court.[4]
• Arbitrators need to complete an advanced degree that consists of a 2-year master’s program in dispute resolution or conflict management, a 4-year to 5-year doctoral program, or a certificate program in conflict resolution at a college on public policy, law, and related fields also provide good background for prospective arbitrators.

 APPOINTMENTAND QUALIFICATIONOF ARBITRATORS[5]:

• Retired judges, licensed to practice in Illinois and residing in the Circuit Court of Lake County, shall be eligible as arbitrators upon filing the appropriate form with the Arbitration Administrator can be appointed as an arbitrator.
• All attorneys licensed in Illinois who reside in, maintain offices in, or practice in the Circuit Court of Lake County, shall be eligible for appointment as arbitrators by filing the appropriate form with the Arbitration Administrator.
• Panel members must certify that they have engaged in the active practice of law for a minimum of two years within the five years immediately preceding the filing of the application.
• Attending The Arbitration Seminar prior to active service on an arbitration panel shall certify eligible arbitration panel members.
• Every panel of arbitrators shall be chaired by a member of the bar who has been engaged in trial practice for at least five years within the preceding ten years of the filing of the application, or a retired judge.
• The eligibility of each attorney to serve as arbitrators may, from time to time, be reviewed by the Arbitration Administrator and determined by the Supervising Judge of Arbitration.
• Each arbitrator shall take an oath of office in conformity with the form provided in Supreme Court Rule 94. In addition, an arbitrator may not be contacted, nor publicly comment, nor respond to questions regarding a particular arbitration case heard by that arbitrator during the pendency of that case and until a final order is entered and the time for appeal has expired.

 Selection of Arbitrator:

In judicial arbitration, the arbitrator may be selected by stipulation between the parties, or appointed through the court selection process.  Arbitrators are to be retired judges, retired court commissioners, or members of the State Bar.[6]Incontractual arbitration, the contract can provide for the method of selecting an Arbitrator.  If the contract does not provide a method, the parties can agree on a method of appointing anArbitrator.  If there is not an agreed method, or if the parties cannot agree on a method, the court will appoint the Arbitrator. [7]

 COMPENSATION OF ARBITRATORS:

• Arbitrators earned an annual median of $50,660.[8]
• Each arbitrator will be compensated in accordance with the requirements of the Supreme Court Rules.
• Upon completion of each day’s arbitration proceedings, the Arbitration Administrator will process the necessary voucher through the Administrative Office of the Illinois Courts for payment of the arbitrators.[9]

Why arbitrators are not judges?

 

The arbitrators “must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business.”[10]

 

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer.

Arbitrators and judges are two terms of judicial procedures and both are related with the legal entities but their works and path is different from each other.

A table has been given below which will illustrate the differences between the arbitrators and judges:

Features	Arbitrators	Judges
Solicitation of law	Assist with alternative dispute resolution.	Apply the law and oversee the legal process.
Places	Settle disputes outside of court.	Inside the courts.
Responsibility	Executive minitrials, early neutral evaluations, and summary jury trials.	Presiding over trials or hearings and listening as attorneys represent their clients.
Nature of the Work	All hearings are private and confidential, and the processes are less formal than a court trial.	Preside over cases concerning every aspect of society
Work environment	Work in private offices or meeting rooms.	Work in offices, law libraries, and courtrooms.
As person	Attorneys or businesspeople.	Most judges have been lawyers.
Licensure	No national credentials or licensure requirements.	Need National credentials or licensure requirements.
Knowledge	Different mediation techniques and dispute resolution methods.	Jurisdictions, laws, regulations and powers.

 What is arbitration?

Arbitration is a means to resolve a civil dispute without the need to go to trial.  In arbitration, a neutral third person (called an “Arbitrator”) will hear the testimony and review the evidence presented and then render an unbiased decision.  Arbitration is less formal than a trial, and the rules of evidence are not as strict.

 “An arbitration is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.”[11]

“Arbitration” has been defined as -”Arbitration is a reference to the decision of one or more persons, either with or without an umpire[12], of a particular matter in difference between the parties.”[13]

Arbitration and Conciliation Act, 1996 provides for judicial intervention in the following cases:-

-Making reference in a pending suit [Section 8].

-Passing interim orders [Section 9].

-Appointment of arbitrators [Section 11].

-Terminating mandate of arbitrator [Section 14(2)].

-Court assistance in taking evidence [Section 27].

-Setting aside an award [Section 34].

-Enforcement of an award by way of decree [Section 36].

-Entertaining appeals against certain orders [Section 37].

-Directing delivery of award [Section 39(2)].

-Reference of a dispute to arbitration in insolvency proceedings [Section 41].

Types of arbitration:

 

There are two main types of arbitration: compulsory and voluntary.

1. Compulsory arbitration, opposing parties submit their dispute to one or more impartial persons, called arbitrators, for a final and nonbinding decision. Either party may reject the ruling and request a trial in court.
2. Voluntary arbitration is a process in which opposing parties choose one or more arbitrators to hear their dispute and submit a final, binding decision.

Arbitrations can be either “binding” or “non-binding,” and are generally referred to as “Judicial” or “Contractual.”

1. Judicial Arbitration is an Alternative Dispute Resolution (“ADR”) mechanism utilized by the California state courts whereby cases that fit a certain criteria are court-ordered to complete.  Additionally, parties can elect or stipulate to proceed with binding or non-binding judicial arbitration. [14]
2. In contrast, Contractual Arbitration is required by a pre-dispute contract whereby the parties agree that in the event of a dispute, resolution will be controlled through binding arbitration rather than litigation.[15]

Laws regarding arbitration:

• Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.[16]
• “Internationally accepted principles of law governing contractual relations”[17]
• Parties shall be legal subjects, according to both the civil law and the public law.[18]
• State Court shall be the state court whose jurisdiction covers domiciles of defendants.

          Conclusion

If we consider the differences between arbitrators and judges then we can be assured about that one party can not be replaced by each other and why arbitrators are not considered as judges it will be cleared out then.

 If we see the laws regarding arbitrations, which have been mentioned above we can be assured about that arbitration is meant to be law although arbitrators are not judges.

 References

1. A Redfern and M Hunter, Law and Practice of International Commercial Arbitration 4th Edition (2004)
2. Aiyer, P. Ramnatha, The Law Lexicon- The Encyclopedic Law Dictionary, Wadhwa, Nagpur, 2nd Edition, Reprint 2006.
3. American Arbitration Association, 1633 Broadway, Floor 10, New York, NY 10019. Internet: http://www.adr.org
4. Arbitration is governed by California Code of Civil Procedure §§ 1141.10 – 1141.31; California Rules of Court Rules 3.810 – 3.830.
5. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2010-11 Edition, Judges, Magistrates, and Other Judicial Workers, on the Internet at http://www.bls.gov/oco/ocos272.htm (visited November 25, 2011).
6. Christian Buhring-Uhle and Gabriele Lars Kirchhof. Arbitration and Mediation in International Business, 2nd Edition (2006)
7. Contractual arbitration is governed by California Code of Civil Procedure §§ 1282 – 1284.3.
8. Deutsche Schachtbau v R’As al-Khaimah National Oil Co [1990]
9. Edited by Rao, P.C., & Sheffield William, Alternative Dispute Resolution, Universal Law Publishing Co. Pvt. Ltd.

10. Gary Born. International Commercial Arbitration (2009 Kluwer)

11. http://www.pwc.com/arbitrationstudy

12. Jhunjhunuwal, S. M., Justice; Saraf Dr. B. P., Justice, Law of Arbitration And Conciliation, Snow White, Fourth Edition, 2006.Publications Pvt. Ltd.

13. Judicial arbitration is governed by California Code of Civil Procedure §§ 1141.10 – 1141.31; California Rules of Court Rules 3.810 – 3.830.

14. Julian Lew, LoukasMistelis, Stefan Kroell, Comparative International Commercial Arbitration, (2003)

15. National Center for State Courts, 300 Newport Ave., Williamsburg, VA 23185-4147. Internet: http://www.ncsc.org

16. R David. Arbitration in international trade (1985)

17. Sullivan, arthur; Steven M. Sheffrin (2003).

18. The Circuit Court of Lake County, pursuant to orders of the Illinois Supreme Court dated December 19, 1988, November 27, 1990 and November 22, 1993.

19. The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past, Present and Future, (2000)

20. The president of the republic of indonesia, concerning onarbitration and alternative, law no. 30/1999, article no-1

21. TiborVarady, John J. Barcelo, and Arthur Taylor Von Mehren. International Commercial Arbitration 3rd Edition (2006)

22. Yves Dezalay and Bryant G. Garth. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, (1998)