The Advantage Compulsory Arbitration

Pennsylvania has one of the oldest systems of compulsory arbitration. Because of its success, many other state courts have implemented the system in their own jurisdictions. Compulsory arbitration was created in response to the overflow of cases being filed with the court to lighten the burden of cases hindering productivity. While there are some challenges to compulsory arbitration, the benefits far outweigh the disadvantages.

One of the reasons this type of conflict resolution is so popular is because of the speed in which a small claims case can be resolved. Hearing occurring a few weeks after filing, the minimal amount of discovery that is done, the lack of need to call witnesses to authenticate evidence introduced, and the process of picking out a jury is completely eliminated are just a few ways the process is shortened for a quicker resolution. Andrew J. Gallogly, Arbitration in Pennsylvania 1,4 (2006). http://www.margolisedelstein.com/files/gallogly_arbitration_in_pa_6-06.pdf.

However, critics to the system believe that the relaxed rules and general informal nature of the process will hinder the amount of esteem the courts are granted. Anthony L. V. Picciotti, Compulsory Arbitration in Pennsylvania – Its Scope, Effect, Application, and Limitations in Montgomery and Delaware Counties – A Survey and Analysis, 2 VILL. L. REV. 529, 538 (1957). Though this would be a major concern if not remedied, attorneys demonstrate their commitment to public service by sitting on arbitration panels and would likely be just as committed to improving the system because they are aware of the speed and convenience it provides rather than reverting to all litigation going through a judge. The claims of being too informal are relatively few in number currently. Id. at 538

Compulsory arbitration is convenient in the way that all lawyers involved, witnesses, and the parties involved do not need to waste their time in idle while they wait for their docket to be called. When a witness knows a definite time, it will decrease the amount of time that is wasted for them, and in turn make them more amenable to testifying for a party. Id. at 535. Also, these hearings are not open to the public, like a trial is, and witnesses may not feel as reluctant to testify as they would if they had to do so in public. Id. at 535. However, even with a specific time and place to meet without having to wait for their docket, lawyers frequently file continuances or a postponement of the hearing because it is typically difficult to gather five lawyers in one place at a mutually convenient time. Id. When a continuance is filed, it requires the scheduling of another time and place for the hearing which causes a delay no matter how small. The proposed solution would be to fine the lawyer asking for a continuance in the two to three days prior to the hearing, a simple but effective fix. Id. at 537

Along with saving time for all involved, a monetary cut also occurs because recordings of the hearing are not taken unless a party wishes for one and pays the cost of recording.  along with the cost cuts from the lack of need to select a jury and an in-depth investigation during a lengthy discovery period. Maurice Rosenberg & Myra Schubin, Trial by Lawyer: Compulsory Arbitration of Small Claims in Pennsylvania, 74 HARV. L. REV. 448, 452 (1961). The need for appeals from “sympathy verdicts” has also been eliminated because attorneys tend to grant judgments that are more in tune with the application of the law to the facts. Id. at 457. Although appeals are decreased, critics of the system note that attorneys tend to subconsciously project themselves into the case they are hearing. A lawyer’s predisposition is to spot deficiencies in the evidence presented by their opposition, so they can exploit the weakness to make their argument stronger. This mindset surfaces in excessive cross-examinations when lawyers serve on the panel. Bartolini & Picciotti, supra 538. However, time and experience on panels is expected to promote less adversarial and more objective tendencies on the panel Id. at 537.  

Overall, compulsory arbitration is extremely favored among lawyers for the speed and convenience in which small claims can be decided.  A public servant attitude demonstrated by attorneys who sit on panels promotes an atmosphere in which change can be implemented in order to address not only an issue of informality, but any concerns regarding the compulsory arbitration system including the easily fixed disadvantages previously discussed. The implementation of this kind of conflict resolution has largely been considered a success by the courts because it lightens the docket burden in courts, primarily the magistrates. Rosenberg & Schubin supra 466.

 

This article was written by writer and legal intern, Jennifer Lapinski.

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