In the U.S., arbitration was mostly invisible to the average person for decades.  During these "dark years" the process was developed and enjoyed by merchants.  But then, slowly, arbitration began to sneak into the existence of the everyday American.  First it was in labor law.  Although judges initially looked upon arbitration with apprehension and perhaps even disdain, it was eventually accepted  (see the 1960 Steelworker Trilogy of cases) as a creature of contract pursuant to negotiated collective bargaining agreements (CBAs).  

Of course, businessmen couldn't stop there.  Seeing the tremendous value in arbitration, via both time and cost savings, the process slowly but surely began to appear in consumer agreements like credit card contracts, employment agreements such as new hire applications, and automobile purchase contracts.  Before long, it seemed that virtually everyone carried around an arbitration agreement in their wallet for access to cash, held one to their ear to have a phone conversation, and sat down in the evening to and stared at an arbitration agreement as they watched their favorite cable television programming.   

Now the general public was well aware of arbitration, and did not like it one bit!  How dare these corporations take away their perceived God given (or at least statutorily given) right to a court trial by a jury of their alleged peers?!  This is inhumane!  This is garbage!  Maybe the idea of being forced without your consent into an alternative dispute resolution process gets the average American up in arms, but in other countries and cultures arbitration is exactly what the people desire!

This weekend, I had the pleasure of attending the ADR Works in Progress conference at The Ohio State University Moritz College of Law.  One of the excellent presenters at the conference was Professor Paul Kirgis at St. Johns University School of Law.  As a frequent traveller to the West African country Ghana, he experienced their much accepted and appreciated form of alternative dispute resolution.

In Ghana (and also evident in other cultures such as the Native American culture as shared by one of the seminar attendees), arbitration has traditionally been and continues to be the preferred mechanism for dispute resolution.  While parties can take their claims to the courthouse, many prefer to present their issues before the Chiefs (or a head teacher or priest might also serve as the neutral arbitrator presiding over the hearings), who will in turn apply customary law (as opposed to the statutory law utilized by the court system) to resolve the dispute.  

With the enactment of Ghana's ADR Act of 2010, the courts attempted to reign in the power of the Chiefs by requiring that all statutory crimes be handled in court instead of in arbitration.  The Act also removed the ability for Chiefs to have people arrested for non-compliance with their orders and decisions.  But even though this Act has made the process less compulsory, the Chiefs still have control over crimes under customary law and can still have influential power over the lives of the participants due to their great influence over the community as leaders in general.  Also, when a complainant brings a charge against someone to arbitration, the respondent has 21 days to accept arbitration as the forum for the dispute.  If they do, they are bound by the arbitral decision.  If they do not, the complainant would need to bring the dispute to the courts for potential relief.  

So while many U.S. citizens continue to fight the usage and influence of arbitration (i.e. consider the ongoing fight in the aftermath of AT&T v. Concepcion), citizens of some other countries are readily embracing arbitration as the forum of choice.  So is arbitration really that bad, or is just the perception of a lost right versus the perception of a respected leader resolving disputes?  Regardless, perception tends to be reality for most, and as a result the saying appears to hold true that one man's trash is another man's treasure!