Arbitration in insurance coverage insurance policies is hardly a brand new idea. In actual fact, its lineage may be traced to the Commonplace Hearth Coverage of Massachusetts, relationship again to 1873—a historic element explored in The First Commonplace Hearth Coverage—Did It Include an Arbitration Clause Fairly Than an Appraisal Clause? But, as that article confirms, the “arbitration” of that period extra carefully resembled as we speak’s appraisal course of than what we now contemplate true arbitration.
Quick-forward to the current, and arbitration clauses are as soon as once more surfacing—this time not as relics of early insurance coverage legislation, however as strategic devices utilized by insurers to bypass state-level restrictions on arbitration. The mechanism empowering this resurgence is the Federal Arbitration Act (FAA), enacted by Congress in 1925 to make sure that contractual agreements to arbitrate disputes can be “legitimate, irrevocable, and enforceable.” (9 U.S.C. § 2).
Nevertheless, whereas the FAA establishes the enforceability of arbitration clauses, it’s silent on process. That procedural vacuum is left to the contract itself—and, in insurance coverage insurance policies, that silence speaks volumes. Most fashionable arbitration clauses in insurance coverage contracts establish when and the place arbitration applies and description the composition of the arbitral panel. However past that, they’re strikingly obscure. They not often establish which guidelines—AAA, JAMS, or in any other case—will govern the method.
In follow, which means that the so-called “arbitration” typically devolves into litigation and not using a jury, guided by the identical procedural formality and expense that arbitration was presupposed to keep away from. The arbitrators—usually attorneys or retired judges—recreate the courtroom setting beneath the guise of informality, counting on the acquainted “guidelines of civil process” and reworking what must be an environment friendly, equitable discussion board right into a drawn-out ordeal.
The result’s an arbitration course of that favors insurers, not insureds. Panels are reluctant to implement ideas of fine religion or to penalize unreasonable declare dealing with. In impact, arbitration turns into litigation stripped of its key safeguard: the jury.
Reclaiming Arbitration for Policyholders
Till policyholder-appointed arbitrators insist that arbitration clauses function as supposed—streamlined, centered, and equitable—this imbalance will persist to the advantage of insurance coverage corporations. Correctly understood, these clauses ought to operate as a type of appraisal—a discussion board for resolving disputes over causation, protection, and valuation—not as a license for insurers to relitigate their very own investigation.
An insurer ought to by no means invoke or comply with arbitration earlier than making a protection dedication. By the point an arbitration is requested, the insurer ought to have gathered and reviewed all of the paperwork mandatory to achieve its choice. Arbitration mustn’t function the insurer’s first alternative to modify the declare or demand many years of historic information. Such ways serve solely to delay decision, drive up prices, and exhaust policyholders.
If an insurer’s protection choice was made rapidly or with out full investigation, that failure lies with them. Arbitrators mustn’t afford insurers a second likelihood to “redo” their declare dealing with beneath the pretext of equity.
A Name for Procedural Self-discipline
To revive stability, arbitrators and advocates alike should implement self-discipline within the course of. A correct arbitration ought to proceed as follows:
- Assertion of Declare: Clearly define the reason for loss, protection place, and valuation dispute.
- Targeted Discovery: Restrict discovery strictly to those points—trigger, protection, and worth.
- Knowledgeable Preparation: Enable either side to current knowledgeable opinions supporting their place.
- Restricted Depositions: Allow depositions solely upon a exhibiting of fine trigger and relevance to slender points.
- Immediate Closing Listening to: Conduct the listening to expeditiously, guaranteeing that either side deal with the proof already in hand.
Arbitrators ought to handle the proceedings actively, intervening when events stray past the central dispute. The ultimate choice ought to emerge from an knowledgeable dialogue among the many panel members—party-appointed arbitrators resolving the place they will, and the umpire stepping in solely as wanted.
The Precept of the Non-Drafter
In the end, arbitration clauses drafted by insurers should be interpreted towards them. If no procedural guidelines are specified, the default ought to favor the policyholder—the social gathering who didn’t write the contract. Policyholder advocates should refuse to consent to guidelines that mimic civil process or that open the door to the identical drawn-out, pricey course of that arbitration was designed to keep away from.
Till that mindset takes maintain, arbitration in insurance coverage disputes will stay little greater than litigation in disguise, serving the insurer’s pursuits beneath the pretense of effectivity. The duty, then, falls to policyholder counsel and their chosen arbitrators to reclaim arbitration as a discussion board for equity, not fatigue.
