In the Museo del Prado there hangs a masterful work by Francisco De Goya entitled “Duelo a Garrotazos,” meaning “Duel with Clubs.” This canvas is arresting and foreboding. Set in the context of a stark sunset, two men face one another, both buried knee high so as to preclude any hope of escape, armed with clubs that are being swung in each other's direction. Their inability to dodge blows or otherwise flee from the deadly contest is underscored by the sense of rigidity arising from being “planted.” The menacing intuition in the spectator of lethal harm is eloquently spawned by the outstretched clubs that inevitably find their immovable, fixed targets. Pursuant to this methodology, the underlying dispute shall somehow be settled and the particular conflict resolved by agreement of the parties, without state intervention or furtherance of national social policies incident to otherwise dispositive judicial recourse.

Domestic and international institutional arbitration in the United States, much like Goya's “alternative dispute resolution” depicted in “Duel with Clubs,” was perceived by commentators, the judiciary, practitioners, and captains of industry as a blunt and imprecise methodology for dispute resolution. In addition to finding arbitral proceedings bereft of the expertise and procedural safeguards endemic to judicial processes, arbitrators also were viewed as wanting in authority to award liquidated damages, costs, punitive damages, or attorneys' fees under most statutorily crafted causes of action, if not pursuant to all claims irrespective of normative foundation.