The Snow Notice used “public order” to invalidate the arbitration agreement. It has relied heavily on two foundations of its public policy. First, a 2002 formal opinion of the ABA Standing Committee on ethics and professional responsibility, which stated that, because lawyers are agents, and arbitration “leads to the waiver of a client to substantial rights, a lawyer must declare the implication of the proposed arbitration agreement, so that the client can make an informed decision. The ABA report asks a lawyer to explain that the client renounces a jury, renounces the discovery and loses a right of appeal. Second, Snow relied on a 2011 Statement by the Professional Ethics Commission that asked counsel to obtain informed consent “with respect to the scope and effect of an arbitration obligation or exclusion clause for jurors.” TAKING CHARGE There is no defined formula for arbitration. The trial is all that the parties and the arbitrator want, with the CPA, to take the lead. Most of the time, it is similar to a civil trial, but less time-consuming and thinner, because it generally renounces, among other things, some of the steps that accompany legal actions, such as the discovery process and the formation of foundation declarations. But while the arbitrator is leading the process, his best approach is not to dictate to clients how it will be structured, but to put the elements that can be involved and help the parties make rational decisions. It is axiomatic that simple things do not require complicated procedures.
Nevertheless, the parties should be allowed to resolve their problems as comprehensively as they see fit. When lawyers and their clients (or their clients and lawyers, if you prefer) use ADRs, we generally applaud them for choosing a trial that is generally faster, cheaper and more satisfying than what is found in the overburdened court system. But if lawyers impose conciliation in their engagement letters with their clients, we have heard that some judges believe that duty of openness and loyalty may be involved, unless correct disclosures are made. The parties can agree on any form of report that corresponds to their objectives.