Executory Arbitration: Advantages, Legality, and Implications
This paper examines arbitration as a method of dispute resolution, comparing its key advantages and disadvantages against traditional litigation. It then focuses specifically on executory arbitration—pre-dispute agreements to submit future conflicts to arbitration—analyzing when courts may refuse to enforce such agreements, how they are perceived by the public and legal scholars, and what precedent and confidentiality implications arise under the Federal Arbitration Act. Drawing on employment law cases and academic sources, the paper highlights the ongoing debate about whether executory arbitration serves justice or enables one party to gain an unfair advantage.
- Arbitration vs. Litigation: Key Advantages and Disadvantages: Compares speed, cost, finality, and discovery between forums
- What Is Executory Arbitration?: Defines executory arbitration and enforceability limits
- Legality and Public Perception: Debates fairness and public trust in executory agreements
- Implications for Precedent and Confidentiality: Analyzes precedent value and confidentiality rules under FAA
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What makes this paper effective
- Provides a clear side-by-side comparison of arbitration and litigation, helping readers understand the tradeoffs before introducing the more specific concept of executory arbitration.
- Moves logically from general concepts to a specific legal mechanism, then examines enforceability, public perception, and downstream consequences in sequence.
- Cites peer-reviewed legal scholarship to support claims about both the practical outcomes of arbitration and scholarly debate over fairness.
Key academic technique demonstrated
The paper uses a compare-and-contrast structure in its opening section, then transitions into a focused analytical memo format. This technique—introducing broad context before narrowing to a specific legal agreement type—is effective in legal writing because it grounds readers in the stakes of the debate before presenting nuanced arguments about enforceability and public policy implications.
Structure breakdown
The paper opens with a general comparison of arbitration and litigation, outlining advantages and disadvantages of each. It then defines executory arbitration and explains when courts may decline to enforce such agreements. A third section addresses legality and competing scholarly perspectives on fairness. The final section covers precedent status and confidentiality rules under the Federal Arbitration Act, including exceptions relevant to employment disputes.
Arbitration vs. Litigation: Key Advantages and Disadvantages
Arbitration and litigation are both legal processes that can be used to resolve disputes. Arbitration is a process in which an impartial third party, called an arbitrator, hears both sides of the dispute and then makes a decision. Litigation, on the other hand, is a process in which the dispute is adjudicated by a judge or jury in a court of law.
There are several advantages and disadvantages of arbitration as compared with litigation. One advantage of arbitration is that it is typically faster than litigation. Another advantage is that it is usually less expensive than litigation, making it a preferable approach for organizations. A disadvantage of arbitration, however, is that the arbitrator's decision is final and binding, and there is no appeal process. Additionally, arbitration may not be well suited for complex disputes (Gough, 2021).
In contrast, one advantage of litigation is that it provides for an appeal if either party is dissatisfied with the outcome. Another advantage is that discovery rules apply in litigation, which means that each side has the opportunity to obtain evidence from the other side through the use of depositions and subpoenas. However, a disadvantage of litigation is that it can be very slow—cases can take months or even years to resolve, which in turn makes arbitration more appealing by default. Additionally, litigation can be very expensive due to attorneys' fees, court costs, and expert witness fees, which, again, places another advantage in the arbitration column since it is far less expensive (Gough, 2021).
When deciding whether to arbitrate or litigate a dispute, it is important to weigh the advantages and disadvantages of each option carefully. There may also be other alternative dispute resolution options worth considering, such as mediation or negotiation.
What Is Executory Arbitration?
Executory arbitration is a legal agreement between two parties in which they agree to submit future disputes to arbitration. The agreement may specify the type of disputes that will be submitted to arbitration, as well as the rules and procedures that will govern the arbitration process. While executory arbitration agreements are generally enforceable, there are some circumstances in which such an agreement might not be enforced by a court.
For example, if the agreement is unconscionable or if it would result in a denial of justice, a court may refuse to enforce the agreement. Additionally, if one of the parties to the agreement later refuses to arbitrate a dispute, a court may find that the refusal is grounds for invalidating the entire agreement. Therefore, while executory arbitration agreements are generally legal and enforceable, there are some circumstances in which they may not be.
References
Gough, M. (2021). A tale of two forums: Employment discrimination outcomes in arbitration and litigation. ILR Review, 74(4), 875–897.
Resnik, J., Garlock, S., & Wang, A. J. (2020). Collective preclusion and inaccessible arbitration: Data, non-disclosure, and public knowledge. Lewis & Clark Law Review, 24, 611.
Samuel, A. (2021). A look back at where English and US arbitration law comes from: The long 18th century. Alternatives to the High Cost of Litigation, 39(8), 125–128.
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