Arbitration appears to rest on a firm bedrock of presumed policies: efficiency, the opportunity for a fair hearing, party autonomy, privatization, arbitrator expertise, neutrality, and finality. These familiar policies, now often mere generalizations, need to be isolated and repackaged in a reformulation of American arbitration doctrine. This chapter discusses the presumed policies purportedly advanced by arbitration and seeks to identify the preferred values that form the foundation of arbitration policy. I stress that four arbitration policies – party autonomy, privatization, arbitrator neutrality, and the opportunity for a fair hearing – occupy center stage in arbitration theory. The chapter de-emphasizes arbitration values supported mostly by mythology and asserts that policies relating to expertise, efficiency, and finality are often trumped by higher order principles that support arbitration. The chapter's conclusion also reveals a previously understated additional arbitration value, that of a public dimension underlying the seemingly private arbitration process.

PARTY AUTONOMY: ALLOCATING DISPUTING POWER AND FREEDOM TO THE DISPUTANTS

Arbitration rests on a firm foundation of party autonomy. The parties own the dispute and should be able to control the details of their disputing process. They may chose to litigate, mediate, or arbitrate. If the parties select arbitration, they may broadly agree to arbitrate without specifying a particular type of arbitration procedure or, alternatively, they may tailor their arbitration arrangement by agreeing to use particular procedures appropriate to their needs.