Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

Blurred Lines: Non-attorneys Representing Parties in Arbitration

by Sarah Cole
March 2015

Indisputably

Sarah Cole

As an arbitrator and teacher of arbitration, I’ve noticed that legal issues are more frequently the focus in arbitration proceedings, both non-labor and labor. I have watched non-lawyer representatives struggle to make legal arguments (although, in fairness, sometimes that is true of lawyers as well). To ensure adequate representation of parties in arbitration involving legal issues, I believe that the parties should be represented by counsel, and that failure to have counsel (rather than non-lawyer representatives) in such proceedings may well be the unauthorized practice of law. I published an article on this topic (with some suggestions for how to handle this problem economically) at http://lawreview.law.ucdavis.edu/issues/48/3/Articles/48-3_Cole.pdf.

My abstract is as follows:

Over the last thirty years, businesses have increased their use of arbitration, while, at the same time, expanding the types of disputes that are subject to arbitration. As statutory claims are routinely moved to arbitral forums, concerns may arise about the potential impact on party representation. Historically, parties in arbitration did not need and were not required to utilize legal representation in arbitration because arbitrators used customs and norms to evaluate and resolve parties’ claims. Today, arbitration differs considerably from this model. In addition to evaluating statutory claims, modern arbitrators often assist the parties in conducting expansive discovery, rule on motions and preside over pretrial hearings. If, as a practical matter, the majority of consumer and employee claims against businesses will be heard in arbitration, representation of parties in arbitration is likely to require considerably greater legal knowledge and expertise than it has in the past. Disputants attempting to arbitrate statutory claims will need legal counsel to properly present their cases in the arbitration forum.

The need for more frequent legal representation in arbitration likely extends to all forms of arbitration, including consumer, labor, securities, and employment arbitration. While critics focus on whether arbitrators are capable of adjudicating such claims, scant attention has been paid to whether non-lawyer representatives, who commonly appear in these kinds of arbitral proceedings, can properly traverse the increasingly complex landscape of legal claims at issue in arbitration. As statutory claims become increasingly prevalent in arbitration, concern and focus on who is representing parties in arbitration must change. The current practice of permitting non-lawyer representation in arbitrations involving statutory claims is sanctioning the unauthorized practice of law.

This burgeoning problem, perhaps unlike those that have come before it, may provide the impetus needed for Congress to consider realistic reform of the Federal Arbitration Act to ensure that arbitration agreements do not become a mechanism by which vulnerable populations are further harmed. This Article explores the problem, evaluating the consequences of non-legal representation for parties to arbitration and considers what steps legislatures, courts, lawyers and bar associations might take to address this growing concern.

Biography


In law school, Professor Cole was Editor-in-Chief of the University of Chicago Legal Forum and won the award for best paper written in the law school in 1990. Following law school, she clerked for the Hon. Eugene A. Wright of the United States Court of Appeals for the Ninth Circuit.

Professor Cole practiced labor and employment law with Heller, Ehrman, White & McAuliffe in Seattle and Seyfarth, Shaw, Fairweather & Geraldson in Chicago before joining the faculty at Creighton University School of Law. While at Creighton, and now at Ohio State, Professor Cole has focused her research on the legal issues and policy that have arisen as a result of the increased use of alternative dispute resolution.

She teaches primarily in the Alternative Dispute Resolution area, but has also taught Torts, Remedies, and Administrative Law. Professor Cole has published articles in Houston Law Review, BYU Law Review, Georgia Law Review, Hastings Law Journal, the UNLV Law Review, and the Ohio State Journal on Dispute Resolution.

Professor Cole is co-author, with Professor Nancy H. Rogers, Dean Craig McEwen, Professor Jim Coben, and Professor Peter Thompson of Mediation: Law, Policy and Practice (3d. ed. 2011), the leading treatise in the field of mediation, and co-author with Nancy H. Rogers, Frank Sander and Stephen Goldberg of Dispute Resolution: Negotiation, Mediation and Other Processes (5th ed. 2007), one of the leading dispute resolution casebooks in the country.

In 2005, she was named the Squire, Sanders and Dempsey Designated Professor of Law. In 2006, she became Director of the Program on Dispute Resolution.

She is a member of the Disupte Resolution Committee for the AALS and a regular speaker on ADR topics at national meetings. She was a member of the academic advisory faculty that consulted with NCCUSL and the ABA regarding the drafting of the Uniform Mediation Act. She also consults regularly with the OSBA dispute resolution committee and the Ohio Supreme Court Commission on Dispute Resolution on dispute resolution issues arising in Ohio.



Email Author
Website: moritzlaw.osu.edu/faculty/bios.php?ID=13

Additional articles by Sarah Cole

Comments