A Suggested Solution. Applying the Xxxxxx Test This article proposes that among all of the existing approaches, the Xxxxxx test of the Louisiana Supreme Court seems to present a solution that is potentially optimal.135 As noted, without disclosure specifications, 132 See Schierson, supra note 105, at 547. 133 See Xxxxxxx, supra note 3, at 1215. 134 See id. 135 See Xxxxxx v. Reasonver, 103 So. 3d 1069, 1078 (La. 2012). the informed consent requirement may lack its regulatory teeth, and the independent representation requirement may suggest that the application of the arbitration is questionable as a whole.136 Thus, setting the disclosure specifications for the informed consent requirement, similar to the speci- fications featured in the Xxxxxx test, may safeguard the credibility of the malpractice arbitration procedures without harming the general operative scheme of the arbitration system;137 it will be a mere addition to the in- formed consent requirement. Firstly, compliance with the disclosure specifications in accordance with the Xxxxxx factors will deliver all the information needed for the signing clients to be aware of.138 As noted,139 the Xxxxxx test not only enforces disclosing all the rights being compromised for choosing arbitra- tion such as,the right to a jury trial, the right to appeal, and the right to receive broad discovery; but also makes all the necessary suggestions for the client to consider such as the option to file other disciplinary com- plaints and the option to seek advice of independent counsel.140 Thus, the arbitration provision that complies with the factors test may fully disclose all of the requirements under the associated ABA commentary.141 In other words, application of the Xxxxxx test perfectly complies with all the re- quired qualifications under general ABA policy while not harming the general systematic justification of the use of arbitration by not extending the regulatory scheme further than requiring the informed consent.142 The application of the Xxxxxx test also clarifies the innate ambiguity of the reasonableness standard by providing clear directions to follow. As noted, determining arbitrability is a question of law not a question of fact due to its procedural nature.143 Thus, judges may have too much discretion 136 See generally supra Part IV.A (discussing how the lack of power of the informed consent requirement, coupled with the independent representation requirement, may affect the general operation of arbitration). 137 See Xxx...
