Arbitration's Counter-Narrative: The Religious Arbitration Paradigm

Arbitration theory and doctrine are dominated by a narrative conceptualizing arbitration via reflection on the qualities of litigation. Litigation, the thought goes, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. Notwithstanding these differences, the standard narrative sees both arbitration and litigation as ultimately serving the same purpose: resolving disputes. This narrative has been pervasive, not only becoming entrenched in recent Supreme Court decisions, but also garnering support from arbitration critics and supporters alike. However, the exclusive focus on this standard narrative has left unexplored a competing arbitral narrative a counter-narrative of sorts that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes. The failure to consider this counter-narrative has prevented legal doctrine from accounting for contexts in which arbitration seeks to amplify the autonomy of parties to pursue shared values by resolving their disputes in the arbitral forum. This arbitral counter-narrative filters into numerous contexts, but it finds its paradigmatic application in the context of religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. These forms of arbitration are embraced not solely because they help to resolve disputes, but also because they enable parties to resolve disputes in accordance with shared religious principles and values. If successfully incorporated into current legal doctrine, this arbitral counter-narrative could unlock the transformative potential of arbitration, enabling parties to employ arbitration not simply as an expedient venue for resolving disputes, but also as an alternative forum for breathing life into mutually shared values.