the pendulum can at long last be swinging back. Recent court opinions, as discussed under, reveal a more guarded approach toward the once heralded arbitration process, as evidenced by judges’ dandier willingness to vacate arbitration awards and carve out exclusions to contractual arbitration.

as arbitration gained popularity in the 1980’s and 1990’s, it was readily welcomed by a heap of as a superior alternative to the courthouse – cheaper, faster and more flexible. Courts favorite arbitration to reduce busy calendars, and averted oversight or inquiry into the arbitration process. That left it to arbitrators to determine the rules, the proof admitted and the ultimate result. This “hands-off” approach led courts and legislatures to say that arbitration is “favored. ” but the question is, should it be?

arbitration has not lived up to its billing. A heap of industries forced laborers and buyers to arbitrate, casting a pall over the assumption that arbitration was “voluntary. ” a heap of industries likewise begun needing use of the same arbitration panels throwing doubt into the assumption that arbitrators are “independent. ” moreover, the fact that arbitrators were given a singular power to decide practically every appearance of a dispute, yet were insulated from review, generated a perception that arbitration could and, in a heap of instances, did generate unfair and abusive results. And with arbitrators charging high hourly rates, a heap of wondered whether or not arbitrators had sufficient incentive to insure a quicker or cheaper solution.

recently, the pendulum looks being swinging in the other direction:

- courts have more and more denied to enforce arbitration provisions on the grounds they’re unconscionable or induced by duress or fraud.

- courts are more and more fewer likely to order non-signatories to arbitrate.

- courts are more willing to find a party has waived the correct to arbitrate.

- courts have become more and more open to vacating arbitration awards. A recent california court vacated an arbitration award because an arbitrator improperly excluded proof that substantially prejudiced a party, reasoning this denied the party the gain of its bargain to arbitrate at all.

- courts have likewise been willing to carve out an exception to the other than as supposed or expected stringent california statute which prohibits challenging arbitration awards on the reason of mistakes of law, disregarding how severe, by refusing to allow finality to an award that would be inconsistent with a party’s statutory rights.

these cases appear to signify a reversal of the “hands-off” approach and, a recognition that arbitrators are able to make severe mistakes that ought not be imposed.

congress too is getting involved. In april, the arbitration fairness act of 2009 was introduced in the senate. This proposal, whether or not passed, would make agreements needing arbitration for employment, consumer, franchise and civil rights disputes unenforceable. The bill doesn’t prohibit arbitration, but rather prevents a party with dandier bargaining power from forcing people to arbitrate through a contractual provision that wasn’t veritably voluntary.

while arbitration has its vantages, recent developments suggest that courts and lawmakers are getting more concerned with fairness, instead of simply arbitration enforcement which can result in inequitable results.