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Review of Awards by ADR Institutions - What are your thoughts?

Some ADR institutions review/edit a Tribunal's award. To what extent, if any, should a Tribunal's award be reviewed and edited by an institution?

How does review/editing vary by institution and within institutions?

Please provide your thoughts/comments below.

Comments (18)

Judge Gerald Harris :

It is useful for an ADR institution to review an award for the purpose of correcting any obvious mathematical miscalculations, typographical errors or misspellings. Such edits should only be made after consultation with the awarding Tribunal.

I strongly believe they should not be edited at all except to conform to a particular format. The award, warts and all, is the arbitrator's, no one else's. Howard Edelman

Anonymous:

On the question of review, I think it needs to be handled with care as arbitrator's I respect write with precision and meaning based on the record before them and the crdibility of witneess. At the same time there may be an obvious error inconsistency, ambiguity or failure to address a claim so that it would be helpful to know that in advance as an arbitrator. Those committed to such a review function need to be well trained, respectful,knowledgeable and understanding of the arbtrable role and function. Anonymous

William H Ewing:

Provided that the arbitrator retains the final authority over the substance and language of the award, I find it helpful to have the neutral forum provider review a draft for clarity, completeness and consistency. The arbitrator must retain final authority.

Everyone deserves an editor, and lawyers (who are also arbitrators) are not known for their pristine writing style. Every party in arbitration deserves a clear and well-written award. If the institution can afford an editor, I would suggest that the award be read for clarity. If the editor does not understand it, likely the parties, too, will be confused. The editor should not change it. She should tell the author simply that certain thoughts or reasonings are not clearly expressed. Certainly, the editor should never weigh-in on the award itself (unless, of course, it leaves something out or does not reflect the reasoning in the opinion). In my experience, AAA reads an award for the inclusion of certain boilerplate language that protects the award from challenge, and that AAA suggests in a template given the arbitrator. It also reads the award for mathematical correctness and the awarding of fees and costs. JAMS, I believe, attempts to read the award for carefully expressed reasoning, and grammatical and syntactical errors. The ICC does the same, I believe. (I could be wrong about JAMS and the ICC and I would love to know more.)
Judith Meyer

Denise Presley:

I think it's valuable to have a fresh set of eyes review awards and I always appreciate the feedback. There's been a few times when I've had to convince the tribunal's reviewer that some factual text was important to understanding the award, but on balance their input makes awards stronger.

I strongly believe they should not be edited at all except to conform to a particular format. The award, warts and all, is the arbitrator's, no one else's. Howard Edelman

Michael Orfield:

My Awards benefit from an AAA review to insure that certain formula driven information is contained in the Award. The information is standard for each award. However, at no time should an institution review an award on its merits, second guessing the basis for the award, or even suggesting an alternative outcome. Should a review see a red flag, such as a total misstatement of the law or should a review feel that a fundamental constitutional right has been violated, then perhaps pointing that out to the Arbitrator for the Arbitrator's evaluation might be in order.

I find it helpful when they do review an award, since they have caught a wording I have used that isn't completely clear or is not specific enough. That kind of administrative involvement is useful, but I don't think they should be offering advice on the content of the award, since they weren't present at the hearing to hear all the evidence.

The ADR Institution's proof-reading can be helpful and much appreciated. Nor is an edit that supplies the amount of forum fees, and totals the arbitrators compensation out of line. I personally do not mind a question about clarity or syntax. But the institution should not edit the substance of the arbitrator's decision. I hasten to add that I have never had that happen.

Anonymous:

This is a subject about which I have strong views. The Case Manager should be the first line of defense. The Case Manager presumably sees many awards and can recognize when one is not up to standard, which means format, language, grammar, citations, completeness, and comparability to AAA-approved awards in similar matters. Such an award should be returned to the arbitrator or chair for correction/revision.

When I served on the federal bench, we had one particularly invaluable Clerk of Court who took it upon himself to act as a safeguard against a judge's making a fool of himself. It was the judge's option to accept or reject the advice.

I would recommend that the AAA institute three procedures: 1) a mandatory 5-day submission deadline before the date of issuance of the award for Case Manager review and arbitrator/chair correction; 2) a training regimen for Case Managers in this important aspect of review; 3) a monthly alert/list to all panel members of common errors/omissions that have been detected in the last month's awards. Of course, the Case Manager should submit all poorly drafted awards to headquarters.

Anonymous

Anonymous:

Not a good idea. Individuals are engaged to offer their reasoning and opinions. Thanks

Paul G, Huck:

Since each arbitral institute has its own expected format and rules (particularly on how to list costs), I want that review whenever I'm drafting my first award for any arbitral institute. Since most awards I've issued have been as a sole arbitrator, I appreciate a review -- it the award makes sense to the institute, it should make sense to the parties.

Micalyn S. Harris:

The AAA has the needed information on fees and costs so they are the only ones in a position to insert that. I appreciate having another set of eyes on an award - even with Word, typos are possible and the occasional comment - always on wording - never on substance, and having the chance to review and edit if I think the concern is justified.

George D. Marlow:

I have no problem having my written work reviewed, but only if the editor consults me before making any suggested constructive changes. However, if we disagree on a change, I believe my opinion on any change should control.
George D. Marlow

Michael A. Levy:

I recently had the language of an award questioned because the reviewer didn't understand some of the language which was unique to the parties' contract. After a question was raised about the language of the award, I re-read it to satisfy myself that I got it right. After I explained why it was written the way it was, it went out as I originally drafted it. I appreciated the second pair of eyes on it. It required me to satisfy myself that it was complete, accurate and would. E clearly understood by the parties. The review was welcome even if the final word was mine.

Awards should be reviewed for clarity. If the case manager cannot understand the award and/or reasoning, it likely needs clarification. However, no substantive changes should ever be made without the prior approval of the arbitrator. Findings of credibility should never be changed, since the arbitrator had the benefit of seeing the witnesses and assessing their demeanor. Sanitizing awards is a dangerous practice unless the arbitrator accepts the changes.

anrew gerber:

Review yes. Edit no.

The institution can suggest improvements and even help the tribunal avoid errors, but it's the tribunal's responsibility to recognize bad suggestions and reject them. (Even then, though, it doesn't hurt to be made to think.)

Complication: An institution I work for has started asking for completion of supplemental data survey forms for statistical purposes. At times I've disagreed with staff about how a form question should be answered. I've deferred to them in these cases because it's their survey, although I wouldn't be so flexible if we were talking about the decision itself.

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