« "What's Past Is Prologue" - What's Ahead for Arbitration Filings in the Wake of the Market's Recent Volatility | Main | Optional Appellate Arbitration Rules: Are They Good For Your Case? »

Dissenting Arbitration Opinions - What are your thoughts?

How often do you see dissenting opinions in arbitration cases? Is it a good or bad thing for the process? Please post comments below.

Comments (11)

The issuance of a dissenting opinion in an arbitral proceeding has never come up once in 35 years of serving as a neutral. I would dissent if I did not agree with the majority and would expect co-arbitrator to do so as well. The danger in seeking a majority is the possibility of unfair compromise for the sake of unanimity, which may be something the panel wishes to achieve but that creates the potential to negatively impact the integrity of the Tribunal's award.

I have been involved numerous arbitrations over a 40 year period, some of which involve dissents which is a reasonable option for a process that is neutral. The dissent has been expressed by treating the award as a majority award, or a one line dissent with the name of the dissenter, and finally if the dissenting arbitrator feels strongly and wants to explain for the record why he or she considers the decision is wrong , a written dissent may be appropriate and I have seen it in done in several arbitrations.

Dave Anderson:

Dissenting opinions are uncommon. I have seen only two. But in both cases, the dissenting opinion was helpful.

In the first case, the defendant subcontractor (among its other claims) sought to recover from the prime for owner-caused delay. Under New York case law, unless contractually agreed, a prime is not liable to its subcontractor for owner-caused delay. The prime moved for summary judgment on the owner-caused delay portion of the claim. The panel denied summary judgment because two members were hesitant to dismiss a large delay claim without hearing the evidence. The dissenting opinion, however, stated the issue clearly -- which eventually led to the parties settling the entire dispute.

In the second case, the key issue was contractual notice. The owner had actual timely knowledge of the prime's claim. The prime also gave contemporaneous written notice, but late and not in the format prescribed by contract. The 3-member panel found for the prime. The dissenting panel member bitterly took the panel to task for not strictly interpreting the contract to deny the claim. The presence of a dissenting opinion made it clear how close the notice decision was, and, perhaps more importantly, that both the prime's and the owner's positions on this key issue were fully considered by the arbitration panel.



Gerald Harris:

The prospect of a dissenting opinion has never arisen in any of the three-member panels on which I have served. I believe such an opinion is generally not helpful to the arbitral process and should be disfavored unless the conscientiously held view of a panel member cannot be aligned with the majority view and to sign on would offend the dissenting member's strong conviction that a different outcome is mandated by the evidence.
Judge Gerald Harris

Joanne Barak:

I have sat on panels in which dissents were issued (both by me and by others), as well as on panels in which partial concurrences/dissents were issued. Some of these were quite vigorous. I would much prefer to see an award with a dissent attached than a unanimous award that was achieved by a give and take on issues or damages figures (otherwise known as horse trading). The latter is fairly common in my experience. In my opinion, the pressure to achieve unanimity in this way is unseemly. I'm not saying that the arbitrators should not debate the issues and attempt to convince one another of the correctness of a particular position, something which is entirely different than the horse trading that sometimes occurs.

I believe that dissents should be extremely rare for all the reasons expressed in C. Mark Baker & Lucy Greenwood, Dissent - But Only If You Really Feel You Must: Why Dissenting Opinions in International Commercial Arbitration Should Only Appear in Exceptional Circumstances, 7 No. 1 Disp. Resol. Int'l 31 (2013).

Melvia B. Green:

Dissenting opinions should be discouraged, if possible, in arbitration proceedings as they may tend to perpetuate further litigation between the parties. This, in turn, undermines the finality and cost-effectiveness of the arbitration proceeding.

Hon. William G. Bassler:

In the years that I have been actively arbitrating since leaving the federal bench nine years ago, I have not authored or experienced a dissenting opinion.
I think that they should be discouraged.More often than not they are egoistic exercises or plays to get new business from the side benefiting from the dissent.That having been said I haven't seen a vacatur because of a dissent.

In my opinion a dissent should be a rare event. And if needed, a footnote or statement that the dissenting arbitrator does not join the majority should suffice.

The purpose of arbitration is to bring closure to the dispute, not perpetuate it. The facts are seldom so clear or the law so determinate that reaching a consensus isn't the better course to take.

The one-line dissent serves the purpose of telling the parties that the arguments presented a close question and the losing party's position was not unreasonable. Even expositions of a legal difference have their place. I have, however, been faced with impassioned lengthy dissents (one by a non-neutral arbitrator) questioning all aspects of the decision and even the motivation of the majority. It begged me, as the impartial neutral, to change my mind and enter the award for the respondent. I thought that to be bad form in that it cheapened the arbitration process, giving the award the appearance of a whim rather than a considered decision. As a former appellate judge, I am used to dissents,, but I suggest that they be sparingly used in arbitrations.

I learned from another arbitrator a useful practice when faced with impasse. We took a break in our deliberations. We exchanged outlines on the issue on which the arbitrators were divided. The outline listed the evidence by bullet point: the exhibit numbers and transcript references relevant to the critical fact determinations. Not just the supporting evidence for a point of view, but all the evidence on point.

The break allowed us time to consider/analyze the outline information of the other arbitrators and ensure that ALL the evidence was being weighed. This facilitated dissecting of the underlying evidence for differing points of view. Then we reconvened by conference call. This approach contributed to really good critical thinking, focussed the deliberations, reduced arguing and we were able to overcome the impasse.

Mark Bunim:

In situations where there are two party appointed arbitrators and the two appoint an umpire, dissents are very common. Inherently the party appointed arbitrator, absent unusual circumstances, is going to favor the appointing party; that is why they are there. There is nothing wrong with a dissenting opinion in such circumstances and if there is an appellate process built into the arbitration agreement the dissenting opinion becomes very important to the appellant.

We should not frown upon well reasoned dissents.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

About

This page contains a single entry from the blog posted on September 14, 2015 9:44 AM.

The previous post in this blog was "What's Past Is Prologue" - What's Ahead for Arbitration Filings in the Wake of the Market's Recent Volatility.

The next post in this blog is Optional Appellate Arbitration Rules: Are They Good For Your Case?.

Many more can be found on the main index page or by looking through the archives.