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Today there was an article on CNN about some kind of employee abuse case that referred to attempting arbitration. I couldn't find the article again to link to it but I found a lot more references to it.

The most interesting one seems to be this page from lexology where the summary of a US Supreme Court ruling seems to believe that the court believes that arbitration is something that can fail to resolve an issue. A "stay of trial proceedings until they have had a chance to attempt arbitration" doesn't seem to read as though they expect it to work reliably.

The court can't really be talking about the remote possability that the arbitrators don't take the case, nor the remoter probability of failing to remain an arbitrator long enough to finish it. Mind boggles.

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First of all, it doesn't seem to be a question of whether the court "believes" that arbitration can fail. The phrase "attempt arbitration" isn't from the court's opinion (the case is ARTHUR ANDERSEN LLP v. CARLISLE (No. 08-146) 521 F. 3d 597); indeed, the word "attempt" doesn't appear there at all.

"Attempt arbitration" is from the article's author (Lynn Hawkins) explaining the provisions of Section 3 of the Federal Arbitration Act, 9 USC. If Alice sues Bob, but they have an arbitration agreement in force, Bob can request a stay of the lawsuit so that the case can be heard by arbitrators. If the arbitrator's decision is acceptable to Alice, then there's no more controversy and the lawsuit can be dismissed. But if Alice doesn't like the outcome of arbitration, she might still be able to proceed with her lawsuit; perhaps she will claim that the arbitrator was corrupt, or that the process was flawed in some other way (see 9 USC 10).

So in this case, I think "attempt" alludes to the notion that Alice has to at least "try" arbitration, and see whether she likes it, before moving ahead with her lawsuit. "Success" and "failure" are from Alice's point of view; "success" is a decision she likes, "failure" is one that she doesn't like.

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  • I guess that's what I get for reading bad summaries. – Joshua Aug 23 '18 at 2:53

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