I’ve run across one or two Arbitrators lately who – I can’t say it any other way – are jerks. You know the type, someone with a certain amount of overbearing pride who comes off as being arrogant, unreasonable and insecure. Maybe it’s just a sign of the times but it’s given me some thought about what is the right temperament for an Arbitrator and how does that differ from judicial temperament?
According to the American Bar Association, judicial temperament means that a Judge exhibits “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.”
Those are important attributes and, well, it’s pretty clear the two fellows I ran across don’t have judicial temperament. It’s also clear to me they don’t have arbitrator temperament either.
Arbitrators require all the attributes of judicial temperament. They need to manage a case fairly, effectively, with an open mind and with care and respect. But arbitrator temperament actually requires more.
It starts with subject matter expertise. Arbitrators are selected for a case because they are expected to have some degree of expertise in the field, or at least an appreciation for the subject matter. Sometimes that appreciation is as basic as having years of practice in business law. In technology company cases, it could mean having worked in a particular technology field (such as SaaS, genomics or solar) or having an appreciation for how technology companies in a particular sector work on a day to day basis.
But there’s more to it than merely having an appreciation for the subject. Arbitrators are expected to have a real-life perspective on the cases they handle. That is, parties want Arbitrators who are able to assess the situation from the perspective of the parties. Both Judges and Arbitrators apply the law to the facts but Arbitrators are anticipated to have a fuller appreciation of how things actually work in the industry and how the law should be applied in context.
A jury can provide a verdict reflecting broad community values. A Judge can make a judgment that is based on the law. But parties rely on Arbitrators to go further. You can be a smart patent lawyer but if you don’t know how to relate to people you’ll be a lousy Arbitrator. Arbitrators are expected to understand how business works – and how people think – and to apply values and the law with a deep appreciation for the context. The essence of what arbitration promises are decisions that will not only follow the law but are more likely to make sense given the circumstances.
Which brings me back to the topic of Arbitrators who are jerks. To be able to make decisions that make sense, an Arbitrator needs to be skilled, grounded in reality and recognize he or she has been selected to work with counsel and the parties not to judge them. Arbitrators need to sit at the conference table thinking like business people, not as judges, and certainly not as if they are a gift from above. There is plenty of room for professionalism, collegiality and modesty. There is no room for arrogance and hubris.
Knowledge of the law, open-mindedness, appropriate firmness, freedom from bias and courtesy are part of the equation. Patience, understanding, tact and courage add to it. Having a business perspective grounded in reality rounds out the equation. In the end, it should all add up to an Arbitrator managing the proceeding and making decisions in a way that is fair, right and makes sense.