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This week, our etymology-blog will focus on the legal term ‘arbitration’, and get into the roots of it. What does it mean, and why do we use that word to describe one process of resolving issues in a divorce?
To understand it, we are going to venture into a sidebar to the related word ‘arbitrary’, which Merriam-Webster tells us means (amongst definitions) “based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something”. Often this is used with a negative connotation, implying or stating that the person taking an action arbitrarily is doing so on a personal whim rather than because they value the input of others. Black’s law dictionary, by contrast, lays out the differences in definition between binding and non-binding arbitration.
So when you’re looking at your options for legal representation, and see that one possibility might be to use ‘Arbitration’, perhaps your first thought is I’m not going to enter into a process that sounds so random. But let’s step back further, to a Latin phrase which shares this same root: the ‘arbiter bibendi’. At Roman parties — where people would imbibe lots of alcohol — the arbiter bibendi (lit. “decider of drinks”) was responsible for deciding how much water would be added to the wine.
From these two disparate examples, we can see that the word ‘arbiter’ — literally, ‘the decider’ — really indicates having personal autonomy in a social or legal context.
So, the question we now must ask is: Is Arbitration random or is there a decider? And the answer is that there is most certainly a decider. In fact, Arbitration is “private court”, with much but not all of the formality and fact finding, but on a time schedule and with the ability of the participants to choose their judge. However, it’s not an official arm of the judiciary and not an entitlement. That being said, the upsides to Arbitration are considerable: you have more control over your process which may have a long-lasting impact on your family and the people you love.