The Third Side: What Do Arbiters Do?

What Do Arbiters Do?

Central functions of the arbiter include providing a nonviolent way for parties to resolve their dispute, making decisions about what counts as a fair or just resolution, and encouraging parties to negotiate. Society's arbiters operate in a variety of different roles.

  • Fundamentally, arbiters are judges. They determine who is right and who is wrong, and who needs to do what to remedy a situation. Adjudication is one of humanity's great social inventions, if only because it provides an alternative to the violent resolution of conflicts.
  • However, formal judges in courts are not the only arbiters in society. Most arbiters actually work outside of courts as formal or informal (as in teacher or parent) arbiters. Formal arbitration is usually arranged through the consent of the parties. Often, when they sign a contract, parties agree in advance to accept the binding decision of a trusted, jointly selected third party, to whom they then present their case. Arbitration is widely used to resolve commercial disputes, both domestic and international, as well as employee grievances. Indeed, ninety-five percent of all collective bargaining contracts in the United States provide for arbitration of employee grievances.
  • Arbitration can also be employed to end wars. In 1988, after Peru and Ecuador fought a brief but intense war over their border, the presidents of both countries agreed to seek arbitration by the four guarantors of a prior 1942 treaty: Brazil, Argentina, Chile, and the United States. To everyone's surprise, the legislatures of Peru and Ecuador consented in advance to accept the decision of the four guarantors. With nationalist passions still running strong, political leaders felt it easier to accept a ruling by others than to make direct concessions to the enemy.
  • In many parts of the United States, community courts have been established as part of the growing trend toward incorporating restorative justice practices into the criminal justice system. In Vermont, for example, citizen volunteers on Community Reparative Boards sentence nonviolent adult offenders to make amends to their victims and perform community service work. In these cases, the role of arbiters is not only to determine who is right and who is wrong, but also to repair the harm caused to victims and communities, and reintegrate offenders. Efforts to make things right typically come in the form of reparations, restitution, and community work.
  • Similarly, youth courts have been established in many communities, to allow young people to hand down "punishments" to their peers for minor offenses. These punishments typically require offenders to make reparations, carry out community service, and apologize to those whom they have wronged. Such cases indicate that to play the role of arbiter, one does not necessarily need to be superior in status or power to the parties. Peer arbitration is widely viewed as an effective way to reduce juvenile crime.

Promote Justice

Central aims of the arbiter include the promotion not only of peace, but also of justice. The rulings of arbiters, whether they are judges, parents, teachers, or young people, offer these members of the community the opportunity to send a message about right and wrong. Often, this involves imposing solutions that aim to address injustice.

  • When adjudicating among children, parents and teachers have an opportunity to reaffirm the principles of justice and fairness. By teaching these children that certain courses of action are wrong or off-limits, parents and teachers can aid in the development of morally responsible citizens. Arbitration can also serve as an important part of violence prevention at the community level.
  • By promoting justice and upholding the United States' Constitution, domestic courts can play an important role in protecting people's rights and establishing fair and just legal precedents.
  • Many believe that the International Criminal Court, established in 1998, can play an important role in upholding international law and deterring acts of political violence, including genocide, aggression, war crimes, and other crimes against humanity.

Encourage Negotiation

It is important to note that by deciding who is right and who is wrong, an arbiter runs the risk of further straining the relationship among the parties. Paradoxically, then, one component of an arbiter's role is to encourage parties to negotiate a settlement or attempt mediation whenever possible and appropriate. To assist the parties, the arbiter can even suggest a standard or procedure of fairness to be employed in their settlement talks. If parties are able to resolve the matter by themselves, they will often be more satisfied with the outcome.

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Much of the material on this user guide is drawn from www.thirdside.org. Thanks to William Ury and Joshua Weiss for giving us permission to republish their material here.