CONSENSUS ARBITRATION

Arbitrators have the freedom to optimize party control of the decision-making process. Yet, arbitrators act like judges who hear all evidence and then render a full decision.

While judges are imposed on everyone in a society (and must therefore offer every opportunity for advocacy before making a decision), arbitrators can structure their decision-making process to maximize party input.

What if arbitrators used their decision-making power to guide the negotiation between the parties? After hearing arguments and evidence, the arbitrator could reveal the range of outcomes they could arrive at in a decision and then allow the parties further opportunity to negotiate.

Research indicates parties do not like losing control of the decision-making process. They may therefore prefer to know the arbitrator's leanings and, accepting that a binding decision will fall within this range then work out certain details themselves.

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