Every Arbitrator is unique. Like everyone else in the world, their experiences, training, personality and a host of other factors shape who they are. And when it comes to arbitration style, there are many varieties.
Unlike in court, where the decision maker, the Judge, is imposed on the parties, in arbitration the parties have a role in selecting the Arbitrator. Accordingly, giving some consideration to preferred arbitration styles can be useful to parties and their counsel.
It’s true, I know some great Arbitrators who just sit there. They sit there, like learned judges, taking it all in but never sharing a thought until the issuance of their Award.
But that’s not my style. I favor interaction throughout the course of the proceeding.
Interacting with counsel – and their clients – at the start of a case helps me understand what they want and expect from the arbitration process. It helps me understand the substantive issues important to them. It also helps me understand considerations and concerns that may not be addressed in the submitted papers.
Some Arbitrators impose a process on the parties. Like courtroom judges, they have their own standard procedure and don’t want to hear from counsel. That’s not my style. Arbitration offers parties and their counsel the autonomy to design a process that meets their needs. When counsel can agree on a process, particularly one that is efficient and saves their clients costs, I’m all for it. In fact, I consider it the task of a good Arbitrator to offer suggestions to make the process work smoothly and comfortably for the parties and their counsel.
It’s often said that Arbitrators from civil law backgrounds don’t allow enough discovery and Arbitrators from common law backgrounds allow too much disclosure. There’s a lot of variety in between. Good Arbitrators take into consideration the international nature of the case and the expectations and desires of the parties and their counsel. Although I strongly encourage counsel to strive for efficiency, I abide by party wishes when they agree on the scope of disclosures.
Along the same lines, some Arbitrators never allow motions on the basis they can hear all the arguments at the Arbitration Hearing. My approach tracks modern arbitration practice which allows parties to submit motions if they are likely to provide efficiency in resolving the case.
A good Arbitrator is smart enough to eventually grasp what a case is about. A great Arbitrator already has a background in the field and is able to take things to a higher level. Interacting with counsel regarding their presentation of the case advances that result. After all, counsel know the case intimately and interaction with the Arbitrator can help ensure their positions are clearly understood. Likewise, interaction can guide counsel as to issues the Arbitrator is focused on or miscomprehending. As well, it can be productive when an Arbitrator seeks clarification on testimony from witnesses.
I appreciate that some trial counsel are neither accustomed nor comfortable with the trier taking an interactive role. An Arbitrator asking questions needs to be sure not to interfere with counsel’s case presentation. Overall, there needs to be a balance. In that balance, an Arbitrator who just sits there silently is probably missing something, and that can be unfortunate for counsel and their clients.
Formality also defines arbitral style. Some Arbitrators insist on the formality of a courtroom setting. Again, that’s not my style. Although I insist on decorum and professionalism, I view arbitration as a business process not a trial. In arbitration, testimony can be focused on making the Arbitrator understand the facts rather than making a record for appeal. And although evidentiary rules do not strictly apply, I welcome counsel making objections when needed.
Interacting with counsel is particularly helpful after the evidentiary hearing. In major cases, post-hearing briefing is always very instructive. In some cases, it also makes sense to schedule a hearing, in person or telephonically, to address issues of concern to the Panel. This ensures counsel and the Panel are focused on the same issues.
Arbitrator style also extends to approach in resolving cases. Some Arbitrators consider it their role to reach an equitable result, regardless of the law. That’s a disservice to the parties and can lead to an Award being vacated. It’s not my style. I decide cases based on the parties’ contract and the law.
Parties select Arbitrators to resolve cases in an intelligent, fair, professional and business-like manner. In preparing Awards, some Arbitrators, those who aspire to be Judges perhaps, are dedicated to drafting detailed (and costly) legal decisions with findings of fact of conclusions of law. Others, for various reasons, may favor summary rulings. My view is that Arbitrators are paid good money for their services and the parties and their counsel deserve well-reasoned and definitive awards. Accordingly, although I always give parties the form of Award they request, my preference is to provide a reasoned award that, without unwanted detail, thoughtfully addresses all of the issues raised by the parties.
Finally, as a Silicon Valley lawyer at heart, I’m a big believer that doing a business deal is better than going to court. Sometimes it is too late by the time a case gets to arbitration; sometimes it’s not. While Arbitrators do not engage in settlement negotiations, I always encourage parties to consider settlement, including using mediation if it would be helpful. Even if a new business relationship isn’t possible, limiting cost and risk may make a settlement worthwhile. That’s also part of my style – I’d rather have the parties go away with a new business deal than my just sitting there.