Is arbitration constitutional? This is the question that Margaret E. Randels tackles in her article that was awarded an honorable mention in this year’s James B. Boskey Law Student Essay Contest on Dispute Resolution. This article is worth reading, because it asks a question that, perhaps, needs asking and that some may have taken for granted. The essence of Randels’ argument is that private arbitration agreements, often times entered into through contracts of adhesion, remove cases from constitutional courts and decisions are made by non-Article III judges.
Among the recommendations Randels makes is requiring mediation. Mediation, according to Randels, doesn’t implicate the same Article III issues as arbitration: there is no decision maker, the parties are reaching a settlement, instead of a judgment, and mediations don’t crowd the court’s docket.
What do you think? Are arbitrations constitutional?