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.