What Is the Difference Between a Judgeand an Arbitrator?

Abstract

Is the role of an arbitrator the same as the role of a judge? The short answer is “no, not at all.” Although both arbitrators and judges administer justice, being an arbitrator is not like being a judge in a court of law. Even though arbitrators are sometimes described to non-lawyers as “private judges,” this description can be misleading because there are, in fact, big differences between the tasks carried out by arbitrators and those effectuated by judges. However, despite these differences, the questions put before a court in a civil matter and an arbitral tribunal are often the same, and therefore comparing the two makes sense.
Comparisons between arbitration and civil litigation are often undertaken from the perspective of the parties or parties’ counsel. In this chapter, by contrast, we will explore the issue from the decisionmaker’s perspective. Having experience as both state judges and arbitrators, we have observed the differences between the roles first-hand. Some of the differences are necessary, some are beneficial, but others may be unnecessary and arguably detrimental to the administration of justice. It is our hope that by highlighting varying perspectives, disparities, and alternatives, our reflections can catalyze improved arbitral processes.