By Leslie King O’Neal
In honor of President’s Day, this post discusses how some U.S. Presidents have promoted and used arbitration and mediation.
George Washington’s Will Had an Arbitration Agreement
Even in the early days of the United States, arbitration was a favored method to resolve disputes. The Father of Our Country included an arbitration clause in his will, specifying that any disputes were to be decided by three impartial arbitrators who, “unfettered by Law, or legal constructions” should declare the testator’s intent. Their decision should be “as binding as a decision of the U.S. Supreme Court.”[i]
“Honest Abe”—Promoting Mediation & Arbitration While Riding the Circuit
In the late 1840’s and early 1850’s Abraham Lincoln “rode the circuit,” traveling from one county seat to another with other lawyers and court officials for sessions of the circuit court.[ii] As a practicing lawyer for 25 years, Abraham Lincoln was as well known for settling cases as he was for his jury trial prowess.[iii] “Known in his day as a lawyer’s lawyer, Lincoln was a brilliant litigator – better before a jury, Stephen Douglas said, than anyone could compare.”[iv]
Although he was a litigator, a famous Lincoln quote praises settlement: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time.”[v] A review of Lincoln’s 25-year law career shows more than 1,600 of his 5,000 cases settled. In addition, he frequently acted as a mediator in emotionally charged slander cases, settling 92 of them.[vi]
Lincoln also participated in arbitrations. In 1843 Illinois Governor Thomas Ford appointed Lincoln as one of three arbitrators to resolve a complex financial dispute between the state and former State House Commissioner involving construction funds. The panel found in favor of the state and awarded $271.00.[vii] However, in 1856 Lincoln lost an arbitration involving an oral agreement for the sale of hogs.[viii]
For more about Lincoln, see prior post about Abraham Lincoln and reconciliation.
Ulysses S. Grant—International Arbitration of U.S. Civil War Claims vs. Great Britain
After the Civil War, the U. S. made claims against Great Britain because it supplied warships to the Confederacy. “. . .[A]t one point, a claim was made that Britain was responsible for half the cost of the war, and that the U.S. would consider Canada proper payment.”[ix] The 1871 Treaty of Washington was resolved through arbitration in Geneva before a five-member panel. The heads of state of Britain, the United States, Brazil, Italy, and Switzerland designated the arbitrators. Ultimately, Great Britain got to keep Canada, but it had to pay the U.S. $15.5 million.[x]
Grover Cleveland—Arbitrating the Venezuelan Crisis of 1895
A border dispute between Britain and Venezuela regarding the British Guyana border[xi] (Britain claimed an area where gold had been discovered) caused President Grover Cleveland to intervene and compel the parties to arbitration with a U.S. boundary commission, invoking the Monroe Doctrine.[xii] The commission rejected Britain’s expansive claims but maintained the 1835 border. Former President Benjamin Harrison represented Venezuela in the arbitration.
Theodore Roosevelt—A Nobel-Prize Winning Mediation
Although “T. R.” played up his “Rough Rider” image on the campaign trail, he may have coined the phrase “alternative dispute resolution.” In 1905, Russia and Japan had been fighting a bloody war for several years. Both sides were exhausted by the conflict, but neither wanted to concede defeat. Roosevelt managed to get each side to ask him to intervene.[xiii]
Roosevelt started the mediation by hosting both delegations aboard the presidential yacht, MAYFLOWER, providing plenty of imperial pomp and circumstance and champagne. He resolved the parties’ dispute over which delegation entered the yacht’s salon first by taking each envoy by the arm and pulling them simultaneously through the door.[xiv] Using all the mediator’s tools and his personality and understanding of the international order, he was able to get the parties to reach a compromise.[xv] In 1906 Theodore Roosevelt was the first American to receive the Nobel Peace Prize for resolving the Russo-Japan War.
“Silent Cal” – Father of the FAA
Before the Federal Arbitration Act was passed, enforcing arbitration agreements and arbitration awards was very difficult. Courts were jealous of their jurisdiction and frequently refused to require parties to arbitrate. This all changed on February 12, 1925, when President Calvin Coolidge signed the FAA into law. The legislation passed unanimously, perhaps in part due to support from then-Secretary of Commerce Herbert Hoover.
Takeaways
- Arbitration and mediation are not new dispute resolution methods. Lawyers and U. S. Presidents have used these tools from the beginning of U.S. history.
- Starting a mediation aboard the presidential yacht MAYFLOWER seems like a great way to break the ice.
- The 100 year old FAA was the beginning of commercial arbitration as we know it.
[i] George Washington’s Last Will and Testament, July 7, 1999. https://founders.archives.gov/documents/Washington/06-04-02-0404-0001
[ii] Willard King, Riding the Circuit with Lincoln, 6 American Heritage 2 (February 1955).
[iii]Dennis Curran and Emma Kingdon, Abraham Lincoln: An Early Champion of ADR, MDRS Online, https://www.mdrs.com/faqs/mdrs-articles/abraham-lincoln-an-early-champion-of-adr/#:~:text=Lincoln’s%20legal%20career,Guy%20C.
[iv] Shapell Foundation, Lawyer Abraham Lincoln Defends Farmer in Dispute Over Hogs, file:///C:/Users/loneal/Documents/blog%20posts/Abraham%20Lincoln%20Lawyer_%20Letter%20on%20Farmers%20Dispute%20_%20Shapell%20Manuscript%20Foundation.html
[v] Abraham Lincoln, Notes for a Law Lecture (date uncertain, perhaps @ July 1, 1850). It is not known if Lincoln delivered this lecture. https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm
[vi] Curran and Kingdon, supra, citing Mark Steiner, An Honest Calling: the Law Practice of Abraham Lincoln (Northern Illinois University Press 2006).
[vii] Arbitration Agreement and Award to the State of Illinois Against Anson G. Henry 14 July 1843, Papers of Abraham Lincoln Digital Library, https://papersofabrahamlincoln.org/documents/D200336
[viii] Hill v. Lamb & Jacoby (1856)https://www.shapell.org/manuscript/when-abraham-lincoln-was-a-lawyer/#transcripts
[ix] George Friedman, The Presidents and Arbitration: From Washington to Trump, Arbitration Resolution Services (February 18, 2018) https://www.arbresolutions.com/presidents-and-arbitration/#:~:text=People%20have%20for%20years%20referred,by%20the%20U.S.%20Supreme%20Court. See also P.B. Waite, The Treaty of Washington, The Canadian Encyclopedia (February 7, 2006) https://www.thecanadianencyclopedia.ca/en/article/treaty-of-washington.
[x] Id.
[xi] Now independent Guyana.
[xii] Id. See also Milestones in the History of U.S. Foreign Relations, Venezuela Border Dispute 1895-1899, Office of the Historian, U.S. Dept. of State, (this publication has been retired). https://history.state.gov/milestones/1866-1898/venezuela.
[xiii] For a variety of reasons, including, “he was Theodore Roosevelt who wanted, as his snarky daughter Alice later put it, ‘to be the bride at every wedding and the corpse at every funeral.’” (emphasis in original) Clay S. Jenkinson, What Did TR Do? A Russian War at the Beginning of the American Century, Governing (May 7, 2023).https://www.governing.com/context/what-did-tr-do-a-russian-war-at-the-dawn-of-the-american-century.
[xiv] Id.
[xv] Id. Some Japanese were not happy with the settlement. There were anti-American riots in Japanese cities.
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