A judge can give a decision on police matter or political activity but an arbitrator’s can not do that-illustrate and explain.
Arbitration- is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. Arbitration, a form of alternative dispute resoluation (ADR), is a legal technique for the resolution of dispute outside the courts, where the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitrary 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.
Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all disputes to arbitration, without knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.
Arbitrators: a person who is chosen to settle a disagreement between people or groups. A private, neutral person chosen to arbitrate a disagreement, as opposed to a court of law. An arbitrator could be used to settle any non-criminal dispute, and many business contract make provision for an arbitrator in the event of a disagreement. Generally, resolving a disagreement through an arbitrator is substantially less expensibe than resolving it through a court of law.
An arbitrator is a person or some times an ad hoc (for the duration of the arbitration) body, who will evaluate a conflict or litigation by the versions presented by each side. The arbitrator will then, after careful analysis, issue a decision that most often is binding and obligatory, resolving and concluding the conflict or litigation.
Arbitrators differ from mediators in that a mediator has the purpose to make the sides agree on middle terms while an arbitrator does not strive for the agreement between the parties but for a resolution of the conflict in a fair manner and according to justice.
Most often, conflicts and litigations may first be submitted to a mediator and only if the mediation fails, the problem will be submitted to an arbitrator.
An example of arbitrators, are judges, but in international relations as well as in commercial and private issues, arbitrators may be appointed who usually have background and are graduated in law and have or are assisted by someone having experience in interpersonal psychology.
Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings.
- when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot “choose the judge<href=”#_ftn1″ name=”_ftnref1″ title=””>” in litigation)
- arbitration is often faster than litigation in court
- arbitration can be cheaper and more flexible for businesses
- arbitral proceedings and an arbitral award are generally non-public, and can be made confidential
- in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
- because of the provisions of the new york convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
- in most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability
- arbitration may become highly complex
- arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party
- arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job
- if the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case
- in some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes
- in some arbitration agreements and systems, the recovery of attorneys’ fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation; however most arbitration codes and agreements provide for the same relief that could be granted in court
- if the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
- there are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned
- although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
- in some legal systems, arbitrary awards have fewer enforcement options than judgments although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect
- arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling
- rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law
- discovery may be more limited in arbitration or entirely nonexistent
- the potential to generate billings by attorneys may be less than pursuing the dispute through trial
- Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to “confirm” an award
- Although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought, thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.
By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:
- Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon: Some court procedures lead to judgments which bind all members of the general public or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States. Matters relating to crimes, status and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
- Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration, while arbitration agreements with consumers are only considered valid if they are signed by either party, and if the signed document does not bear any other content than the arbitration agreement
5. Sources of law:
States regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.
By far the most important international instrument on arbitration law is the 1958 new york convention on recognition and Enforcement of Foreign Arbitral Award. Some other relevant international instruments are:
- The Geneva Protocol of 1923
- The Geneva Convention of 1927
- The European Convention of 1961 The Washington Convention of 1965 (governing settlement of international investment disputes)
- The UNCITRAL MODEL laW (providing a model for a national law of arbitration)
- The UNCITRAL ARBITRATION RULES (providing a set of rules for an ad hoc arbitration)
6. Is Arbitrators are judge?
Some people work as arbitrators, mediators, or conciliators instead of as judges or magistrates. They assist with alternative dispute resolution—a collection of processes used to settle disputes outside of court. All hearings are private and confidential, and the processes are less formal than a court trial. If no settlement is reached, no statements made during the proceedings are admissible as evidence in any subsequent litigation.
There are two main types of arbitration: compulsory and voluntary. During 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. Voluntary arbitration is a process in which opposing parties choose one or more arbitrators to hear their dispute and submit a final, binding decision.
Arbitrators usually are attorneys or businesspeople with expertise in a particular field. In arbitration, parties identify, in advance, the issues to be resolved, the scope of the relief to be awarded, and many of the procedural aspects of the process.
Arbitrators, also use other forms of dispute resolution, including executive minitrials, early neutral evaluations, and summary jury trials. An executive minitrial is a process that involves negotiation including senior executives who have no involvement with the issues that led to the disagreement. Senior executives from each side listen to a summary of key elements of the dispute presented by each of the parties. The presentations may be made to the executives on their own, or by agreement of the parties, a neutral third party may be present. In early neutral evaluation, a person experienced in the subject matter of a litigated dispute will hold a brief, nonbinding meeting to hear the parties outline the key elements of their cases. The evaluator will identify the main issues and explore the possibility of settlement. If a settlement can’t be reached, the evaluator may assist the parties by indicating procedural recommendations. A summary jury trial is a form of alternative dispute resolution in which jurors are asked to render a nonbinding verdict after an expedited hearing. The verdict may be binding if the parties consent.
Arbitrators usually work in private offices or meeting rooms; no public record of the proceedings is kept. Arbitrators, mediators, and conciliators often travel to a site chosen for negotiations, but some work from home. Arbitrators, mediators, and conciliators usually work a standard 35- to 40-hour week. However, longer hours might be necessary when contract agreements are being prepared and negotiated.
Arbitration proceedings, the general consensus among delegates supported limited intervention, although agreeing that the courts are necessary to the arbitration process. “There are many areas of concurrent jurisdiction<href=”#_ftn9″ name=”_ftnref9″ title=””>, interim measures, for example, where sometimes it may better serve
parties’ interests to go to a judge rather than the arbitrator,” said Anne Marie Whitesell, Secretary General of the ICC International Court of Arbitration in Paris. She believes that some intervention is inevitable, but what is necessary is co-operation. “Although it is rare, there are sometimes awards that should be set aside. You need to have judges playing that role to protect the reputation and effectiveness of international arbitration.” Judges should be much less involved however, she believes, in appointing arbitrators. “The institutions can take care of that. They are better placed to do so and can generally render such service much faster than state court proceedings.”Jean-Claude Najar, of GE Commercial Finance, offering a users’ perspective agreed that cooperation is essential. But he emphasised the importance of arbitration as an alternative dispute resolution forum, outside the state courts, which enabled companies to resolve disputes without necessarily ending commercial relationships. Nonetheless he echoed the earlier words of José Manuel Suárez Robledano, encouraging arbitrators against offering Solomonic judgments – which suggest a compromise over the size of an award as opposed to a 100% decision on which party is right or wrong under the law. “This is something that companies don’t like. When we go to arbitration we do not want to see the arbitrator cut the cake in the middle, or thereabouts.” Claudia Salomón, co-chair of DLA Piper’s international arbitration practice, noted an American Arbitration Association study however, that indicated that despite such perceptions most arbitration awards fell on the extreme end, with claimants receiving little or no award, or almost all that they sought.
On the issue of whether arbitrators should address judges, Bernardo Cremades, President of the Spanish Arbitration Court, was very clear. “As an arbitrator, I never have any relation with the judge. It is for the lawyers, after they have received the award or decision, to go to the court to seek an annulment or interim measures.” In any event he questioned the usefulness of such tactics. “My impression of the new generation of judges is that they are very well trained in an international approach, and you will have very easy access. But it is one thing to have access, and another to try and persuade them to do what you want.” Indeed, the hospitability of judges and their approach to intervention are key factors in where parties choose to locate their arbitration noted David W Rivkin. “It is something users pay attention to, where there is significant interaction between the arbitrators and courts, how supportive of arbitration they are, and whether matters are dealt with efficiently.” Jean-Claude Najar also noted the sensitivities that surround communications with arbitrators. “Yes they are independent and impartial, but you have appointed them so should not approach them.” To prove that, Arbitrators are not judge we need to find out or clear some topic. These topics are given bellow:
Education and training. Most judges have been lawyers. In fact, Federal and State judges usually are required to be lawyers, which means that they have attended law school and passed an examination. About 40 States allow nonlawyers to hold limited-jurisdiction judgeships, but opportunities are better for those with law experience.
Federal administrative law judges must be lawyers and pass a competitive examination administered by the U.S. Office of Personnel Management. Some State administrative law judges and other hearing officials are not required to be lawyers.
All States have some type of orientation for newly elected or appointed judges. The Federal Judicial Center, American Bar Association, National Judicial College, and National Center for State Courts provide judicial education and training for judges and other judicial-branch personnel. General and continuing education courses usually last from a few days to 3 weeks. More than half of all States, as well as Puerto Rico, require judges to take continuing education courses while serving on the bench.
Training for arbitrators, mediators, and conciliators is available 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. Most mediators complete a 40-hour basic course and a 20-hour advanced training course. Some people receive training by volunteering at a community mediation center or by co-mediating cases with an experienced mediator. Others go on 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 or university. Many mediators have a law (JD) degree, but master’s degrees in public policy, law, and related fields also provide good background for prospective arbitrators, mediators, and conciliators.
Licensure. There are no national credentials or licensure requirements for arbitrators, mediators, and conciliators. In fact, State regulatory requirements vary widely. Some States require arbitrators to be experienced lawyers. Some States license mediators while other States register or certify them. Currently, only five States—Florida, New Hampshire, North Carolina, South Carolina, and Virginia—have certification programs. In addition, at the Federal level, the U.S. Department of the Navy certifies mediators who have met the Department’s requirements.
Increasingly, credentialing programs are being offered through professional organizations. For example, the American Arbitration Association requires mediators listed on its mediation panel to complete their training course, receive recommendations from the trainers, and complete an apprenticeship.
Other qualifications. Judges and magistrates must be appointed or elected a procedure that often takes political support. Federal administrative law judges are appointed by various Federal agencies, with virtually lifetime tenure. Federal magistrate judges are appointed by district judges,the life-tenured Federal judges of district courts—to serve in a U.S. district court for 8 years. A part-time Federal magistrate judge’s term of office is 4 years. Some State judges are appointed, but the remainder are elected in partisan or nonpartisan State elections. Many State and local judges serve fixed renewable terms ranging from 4 to 6 years for some trial court judgeships to as long as 14 years or even life for other trial or appellate court judgeships. Judicial nominating commissions, composed of members of the bar and the public, are used to screen candidates for judgeships in many States and for some Federal judgeships.
Arbitrators, mediators and conciliators 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, mediators, and conciliators 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.
7. Arbitration is not meant to be a court of law:
The arbitration agreement, which plaintiff was apparently required to execute as a condition of his employment, contained a provision requiring arbitration of all disputes arising out of plaintiff’s past, present or future employment with RAC. The arbitration agreement also provided that the arbitrator would have exclusive authority to resolve disputes concerning arbitrability, including claims that the arbitration agreement was void or void able.
The district court, finding that the parties had agreed to delegate arbitrability issues, including whether the arbitration agreement is enforceable, to the arbitrator, granted RAC’s motion to dismiss and compel arbitration. Jackson v. Rent-A-Center West Inc., 2007 WL 7030394, 2 (D. Nev., June 7, 2007). On appeal the U.S. Court of Appeals for the Ninth Circuit held that the district court was required to consider plaintiff’s unconscionability challenge even though the arbitration agreement specifically delegated such matters to the arbitrator. RAC sought and obtained certiorari. It was anticipated, based on the Ninth Circuit holding and the question presented to the Supreme Court by RAC, that the Court would decide whether a provision delegating arbitrability determinations (e.g., defenses such as fraud, duress, or unconscionability), to an arbitrator
is enforceable. Instead, the Court, with Justice Antonin Scalia writing for a five-justice majority, first set forth some general, settled principles of law, including the principle that contracts, and therefore agreements to arbitrate, are severable. The Court held that the provisions of the arbitration agreement at issue in Jackson are likewise severable, and therefore, create two agreements to arbitrate: (i) an agreement to arbitrate issues of arbitrability and (ii) a separate agreement to arbitrate claims arising out of plaintiff’s employment with RAC. As a result, the district court may only entertain a specific challenge to that portion of the arbitration agreement requiring arbitrability determinations be made by the arbitrator:
In this case, the underlying contract is itself an arbitration agreement. But that makes no difference. Application of the severability rule does not depend on the substance of the remainder of the contract. Section 2 of the Federal Arbitration Act operates on the specific “written provision” to “settle by arbitration a controversy” that the party seeks to enforce.
It may be more difficult to prove that the delegation provision is unconscionable, but the Jackson Court does not prohibit a party seeking to avoid arbitration from challenging the delegation provision and having that challenge heard by a court, rather than an arbitrator, even when the parties have specifically delegated the issue of arbitrability to the arbitrator. Thus, Jackson’s primary and larger effect on arbitration is likely to be legislative reaction to the decision rather than an expanded use of delegation clauses or greater judicial challenges to those same clauses.
Arbitration can be done where the parties can try and hire a certified domestic relations arbitrator or a panel of arbitrators if they believe that is the method to best procure the fairest result.
Just as in any other arbitration case, the decision of the arbitrator is then submitted to the court for confirmation, modification or vacation under certain circumstances. Specific reasons for vacating an award seeking to modify an award are found under Ohio Revised Code Section 2111.10 and 2111.11. If the parties are seeking to utilize an arbitrator and/or private judge, then the appropriate paperwork must be filed in the court to assign the matter to an arbitrator or private judge. It is highly, highly recommended that the individual parties also sign the agreement because arbitration can only be done at the request of all parties in a domestic relations case.
The parties are not estopped from appealing the decision of the arbitrator to the trial court and thereafter they may appeal a trial court’s decision to correct, modify and/or vacate an award. The use of arbitration has some significant advantages that must be weighed with the disadvantages that it brings to any court case. The most obvious advantage to parties and counsel in utilizing arbitration is that of control. The parties and counsel will set the schedule by which certain aspects of discovery will be completed for arbitration. The parties would select the arbitrator, the parties would be able to put time limits on the arbitrator in terms of rendering a decision. Anybody who does any form of litigation has waited months and months on end for a decision to come that could have been rendered within 10 – 15 minutes. Arbitration can give the parties the power to do that. The parties can agree with the arbitrator that they will have so long to render a decision in writing after the hearing date. The control aspect can also come into scheduling in a hearing. Depending on the nature of the dispute, the parties can agree to do the arbitration around the litigant’s schedules, such as doing them on evenings, later afternoons, and weekends or at other times that the court might generally be closed.
Privacy is also a major concern. Depending on how the parties structure their arbitration agreement, it is one way to have the matter done privately between the parties and without having scrutiny of the court or the public. It can also be a cost saving matter. This would depend on the nature of the dispute and the issues involved. If the parties agree to a much stripped down method of arbitration for a very small matter, it may simply be having each of the parties schedule a half hour appointment with the arbitrator. Each party can then go in a state their case and have the arbitrator render a decision. In this way the parties would not have to pay their counsel an hourly rate while at the same time doing arbitration over something small. This last technique would probably be most helpful when the parties have resolved substantially all the issues of controversy between them, but have small nagging issues of less than $5,000.00 which tug more at the parties’ heart strings than at their wallets. In that respect, having the parties do a modified, simple arbitration before a trained arbitrator would resolve the issue, give each party their “day in court and at the same time preserve the settlement on the main issues that will have long term effect on the parties.
The cons of arbitration may be that you do not have the official discovery that you need if you believe that a party is concealing assets or being corrupt. Obviously there are provisions provided in Ohio Revised Code Section 2127.10 and 2127.11 if at a later time that is found out. However, it may hamper a party in terms of doing some if its due diligence.
The cost can be extreme depending on the nature and amount of issues that are before the parties. You are paying a judge or an attorney their hourly rate to sit here and make a decision on the case, when you have a court which technically has a much lower cost to access. Not only are you paying for the arbitrator’s time to listen to the case, but if you are going to do arbitration you will want to make sure that they are educated and that they have certain amounts of material made available to them prior to mediation to review and be competent in terms of listening to the evidence and also compensation for reviewing the evidence and making a determination. This can add thousands and thousands of dollars pending on the nature of the dispute.
Given the fact that the parties are trying to get three (3) different arbitrators, the cost may be cost prohibitive on an ordinary matter. However, given the nature of the case, it may be the parties’ desire to go ahead and pay the extra expenses to utilize the expertise of three (3) different arbitrators.
In addition to those costs, you can have the costs of creating a record, as such a court reporter. You do need to have the process fairly organized so that there is a record created in case you need to object or modify; and therefore, that can take extra cost and time. The perception of bias on the part of parties. If someone is going to be a certified domestic relations arbitrator the chances are that they have had significant experiences in this domestic relations shield and very well will have had relationships with one or both of the litigants. This can hurt the perception that the parties have and can make it difficult.
Overall at the present time, arbitration has not been tested enough to see it as a ordinary process that can replace what the court currently does. However, it does seem to be very, very useful in two (2) situations. 1. We have parties that have a very small issue for which they cannot resolve or reach a settlement. If that issue can be small enough to make it cost advantageous for the parties to be able to spend the money and hiring somebody, then it seems to be a very good alternative. In doing so, it very well will allow the parties that opportunity to have their day in court. The other alternative where the parties have enough funds to deal with the issues where discovery is not going to be difficult and they seek privacy. If privacy is that ultimate goal, then arbitration can be that method and manner to go ahead and provide them the best alternative. However, it would seem that if it is merely a stepping stone for permanent litigation and all you are doing is creating another stepping stone of litigation, if the parties are so fractious and disagreeable then arbitration doesn’t seem to resolve itself because it will just lend itself to litigation involving more lawyers later on down the road.
However, this is just a starting point and it is up to members of the legal community to try and come up with different alternatives to help people through family law matters.
The most common aspect of private judging is to hire a private judge to hear an uncontested case. The undersigned has done that; however, not in this area but in Franklin County. In some of those instances the costs are relatively cheap. The additional cost to the parties are relatively cheap, $300.00 or less. While this has not been introduced in this area yet, it would be anticipated that by the end of 2008 that there will be several lawyers that will be doing some of their uncontested work not going to a court. That will require a visiting judge to register with Cuyahoga County to hear cases and then the parties to have the appropriate paperwork filed and sent to refer the case to them. Once it is done they can do the uncontested hearing on Friday afternoons, evenings or even on Saturdays. This would seem to be a very big advantage for people who cannot take time from work; people who don’t want to pay for their lawyer to wait around for a five (5) minute hearing; and to give people a sense of dignity, privacy and pride. If any domestic relations practitioner is interested in the possibility of hiring a private judge to do their uncontested cases they can feel free to contact or email the undersigned.
On the basis of above discussion, I can say that Arbitrators are not judges, because to be a judge’s, they need to make up some criteria, such as educations license and others.
A judge can give a decision on any type of police account or political activity but an arbitrator’s can not do that. Such as judge can handle crime cases but an arbitrator’s can not fight for the criminal cases, we have found that there are lot of reasons, if we compare judges an arbitrators, we can say that arbitrators are not judges.
On the basis of arbitrator’s an judge’s activities, we can say that arbitration is not meant to be a court of Law. Though arbitrators and judges both work for law, but they are totally separate entity.
- Christian Buhring-Uhle and Gabriele Lars Kirchhof. Arbitration and Mediation in International Business, 2nd Edition (2006)
- R David. Arbitration in international trade (1985)
- Yves Dezalay and Bryant G. Garth. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order, (1998)
- The Permanent Court of Arbitration. International Alternative Dispute Resolution: Past, Present and Future, (2000)
- Julian Lew, Loukas Mistelis, Stefan Kroell, Comparative International Commercial Arbitration, (2003)
- A Redfern and M Hunter, Law and Practice of International Commercial Arbitration 4th Edition (2004)
- Tibor Varady, John J. Barcelo, and Arthur Taylor Von Mehren. International Commercial Arbitration 3rd Edition (2006)
- Gary Born. International Commercial Arbitration (2009 Kluwer)