Circulation of Draft Award - What are your thoughts?


Should an arbitrator circulate to the parties a draft award (with explanation that it represents tentative conclusions) and provide an opportunity to respond in efforts to: (i) create compromise or conclusion on an issue or (ii) highlight issues as to law or fact, even towards misunderstands of the applicable law or faulty reasoning?

Please provide your thoughts/comments below.


I would generally prefer post hearing briefs.


How is that different from having a rule that says the parties can file a motion for reconsideration? I do not think that is appropriate in arbitration proceedings.

I was originally opposed to the idea when it was first utilized by trial judges in New Jersey, but learned that (a) it may well result in a response which points out an error in the draft opinion, (b) avoids the need to send letters or raising questions--usually on factual questions--while working on an opinion, and (c) avoids the need for motions for reconsideration. I can see the benefits in an arbitration IF (1) the parties consent to the practice (which I would make a prerequisite to avoid other issues), and it is clearly stated both in advance of releasing the draft and at the top or bottom of each page that it is only a "draft." I would also set a procedure,not inconsistent with rules, for formal responses and release of a final opinion. And I would make utilization of the procedure a matter of discretion for the arbitrator when he or she thinks that there is a reason justifying it, to avoid extra time when it is not.

I would not do this unless it is specifically required by the parties' arbitration agreement. By contrast, if the parties' arbitration agreement or subsequent agreement calls for award of attorneys' fees and costs to the prevailing party, I would, only if jointly requested, issue an interim award with all issues except such fees and costs addressed. The prevailing party or parties would then file any fee claims for the arbitrator's review and issuance of a final award. However, I prefer that, in cases where there are post-hearing briefs, that these include any attorneys' fees claims and that there be a reply brief opportunity to address all issues, including such fee claims.

It seems to me that circulating a draft award is a mistake at best. This is especially true if the final award substantially differs from the draft being circulated. This will only increase the likelihood of challenges to the award by a disgruntled party.
On the other hand, it may be a good idea to ask the parties to submit their respective positions with respect to specific legal or factul issues in the case that will help the arbitrator render a final award on such issues, especially if the questions to be addressed are unique or constitute areas that the arbitrator feels have not been adequately addressed at the oral hearings or in pre-hearing memoranda.

I would not. This opens the door to all kinds of motions and arguments about the award which effectively means either that the hearing has been reopened or that the hearing never closed. It also creates a paper trail of "evidence" that either side will argue the arbitrator failed to consider opening whatever the ultimate award is to possible vacatur.

I am opposed to the idea.
When I first became a federal judge,this procedure was suggested at the "baby judges'school" for summary judgment decisions. I tried it and after oral argument I reversed course, changing my mind based on what I heard at the argument. The original draft then became the basis of an appeal by the losing side to the Circuit Court of Appeals. which, I am happy say was unavailing.
I never tried it again.

In arbitration I think it runs the same risk as the interim award. That is, it gives a dissatisfied party an opportunity to file a challenge to the arbitrator on some cooked up complaint.
This happened to a friend of mine.

I think that the risks outweigh any perceived benefit.

No. Inclusivity has its place, but not here. Our job is to render a decision and render it right. Sending out drafts would lengthen the process terribly with all sorts of supplemental you name its.

Arbitration is supposed to be speedy and definitive. Let's not water it down.

I do not see such a procedure doing much more than increasing the time and expense of getting to a final award, and I would not, as an arbitrator, initiate a discussion of any such procedure unless there were some extenuating circumstances. Assuming competent counsel on both sides, the matter will usually be adequately briefed, and the arbitrator is responsible to draft a clear and understandable award, particularly if the parties have requested a reasoned award.
The release of a draft award, in my opinion, is more likely to elicit mere repetitive argumentation and briefing in the form of "proposed corrections" than anything else. However, if the parties themselves have created or initiated such a process, then the arbitrator should or must comply. In any case, an award, whether in draft or final, should be as complete and accurate as possible whenever issued.

The arbitrators' award is not supposed to be a consensus of the parties and the trier of fact. That kind of approach is more appropriate for mediation, which tests the ability to compromise. I agree that the opportunity to submit a post-hearing brief allows a party to revise its position in light of the arguments of the opponent and even the attitude of the panel during the hearing. But it is one thing to refine one's position and quite another to suggest to the panel that they are wrong or mistaken. The arbitrators are charged with the duty to draw conclusions from the evidence presented. Let us do our job. Besides, circulating a proposed award creates doubt as to the certainty of the award of the arbitrators. It surely doesn't build confidence in an arbitrator's opinion that the parties have had the opportunity to edit - if not more.

Unless such a provision is contained in the arbitration agreement, I would not. Doing so would, in effect, reopen the case for additional/ new arguments after the record is closed. As others have said, it also extends the time it takes to resolve the matter.

There is a tactic that I haven't used myself, but heard about and has a lot of appeal to me. And that is to conduct the hearing, hear the evidence, and then prepare an award, as usual. But the award is sealed and the parties have a time certain to negotiate a solution of their own. If they can't then the award is unsealed.
To me, this approach has the advantage that after hearing the evidence that the other side presented, it might prompt them to settle instead of taking the risk of losing it all.

I agree with the "no" votes. Better to render a decision and rely on a motion for reconsideration if there's a problem that needs to be corrected or clarified.

As a trial judge, I used this method frequently when deciding minor motions. I would post a list of tentative rulings, and if the attorneys could live with them, they avoided having to come in for oral arguments. As to dispositive motions, however, I refrained from the practice as I thought counsel wanted the give and take of oral argument, and the points argued often changed my mind. In my many years as an appellate judge, I do not think I ever issued a tentative opinion, which would be hard to do with a multi-judge panel.

For a final arbitration award, the sole use I have made of this practice is in areas where computations were difficult, and the help of counsel was appreciated beyond the briefs and schedules that had been filed. Often my own rulings adopted some of one side's and parts of the other's, or followed other logic. I would point out that the reasoning was set, but the calculations might need some critical review. I have found the attorneys cooperative with this approach, and my final awards have been less likely to be subject to motions for corrections.

I agree that certainly in general it is not good practice to submit a draft award/opinion and ask for comments. I did it once as a judge and it backfired. Long story I won't bore you with.
Post-hearing briefs are appropriate in some cases but unnecessary in others - that's up to the arbitrator(s).
A party can ask for reconsideration and I assume the award/opinion can be withdrawn.

If you're inclined to do it, that probably shows that you haven't done enough work analyzing the record of the case.

This seems to be a good example of comparing the worst that can happen to the best when considering a course of action .
The examples cited above seem to make the decision fairly simple.

That is a very bad idea. I see no benefit and a whole lot of danger.

I think the answer depends on (1) whether the arbitrator previously disclosed his or her views on the relevant issues and tentative decisions on those issues (e.g., in oral argument) and (2) the complexity of those issues.

If the arbitrator has been proactive and transparent as to his or her leanings on the relevant issues during the course of the proceeding (which I believe should always be the case), and the issues in the case are simple, then circulating a draft of the arbitrator’s tentative conclusions is not necessary. However, if there is a complicated issue of law or fact, such as which is the correct applicable law, or the method of computing damages is complicated, circulating a draft of the award will increase the likelihood that the arbitrator will decide those issues correctly. It also saves the parties time and expense by focusing them on the issues that the arbitrator considers relevant and, as others noted, it avoids the need for motions for reconsideration.

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This page contains a single entry by Jeffrey Zaino published on March 27, 2017 2:53 PM.

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