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Dissenting Opinions - What are your thoughts?

Are dissenting opinions problematic for the arbitration process? Should parties pay for the time it takes to draft a dissenting opinion?

What are your thoughts/comments? Please provide below.

Comments (13)

Given that opinions are increasingly being shared with non-parties ... yes.

Anonymous:

It is hard to see any real value for dissenting opinions in commercial arbitrations to either the process or the parties. Since arbitration awards in commercial arbitrations have no precedential effect beyond the decision between the parties, the process reason for court dissents is not present in an arbitration award. More to the point, the implicit reason for dissents in general is to cast doubt on the legal reasoning in the majority decision (to prompt a reconsideration of the legal analysis in a future case) and this is counter to the fundamental principal in arbitration to encourage and promote the enforceability of awards except for the type of extreme defects listed in the FAA or the New York Convention. Indeed, any dissent which goes to a mistake in the findings of fact or law in the award, as most dissents do, deals with a perceived issue or issues in the award for which there is no right of challenge to the award itself.


As between the parties, the award is the operative legal document and the dissent has no legal force. In fact, it is hard to see an effect at all for dissents except to encourage the loser to try to attack the award in court. Such attacks are almost always to no avail and just cost the parties to expend money needlessly. As such the value of a dissent to the parties is questionable, if it has any value at all. Given that, it is hard to justify charging the parties for anything but the most abbreviated dissent.

If the parties wanted and two panel members write a reasoned award, then a reasoned dissenting opinion is OK at the parties' expense. If the parties wanted a standard award then the award should be issued upon the decision of a majority of the Panel, one Panel Member dissenting, without reasons. I feel such dissenting opinions enhance the value of the arbitration process.

Deanne Wilson:

Perhaps one situation in which a dissenting opinion may be considered is when the one arbitrator feels so strongly about his/her view that he/she simply cannot sign on with the majority. That should be a rare instance and when it occurs, the dissenter should consider whether the parties should be billed for the drafting time. In other words, the dissent is probably the child of the dissenter's sense of integrity rather than the dispute resolution process sought by the parties...

Sayward Mazur:

I fully agree with Anonymous' 10-14-17 9:39 AM posting and reasoning. A dissent often represents a failure in the panel's deliberative process, which envisions respectful mutual consideration and debate of each arbitrator's views on each material issue, and sometimes requires compromise in one or another panelist's views based on considerations raised by his co-arbitrators.

Dissents in awards "on the merits" seem to me to be marks of egos offended, or, worse, "marketing" efforts. As Anonymous observes, they generally have no purpose other than to encourage vain litigation.

However, as with any generality, there are exceptions. I can think of three: one, where the dissent is on the core issue of arbitrability of the dispute, and the panelist can articulate a strong argument supporting her view, simply because the articulation of that view may not be merely academic. That is, a court may value it in making an ultimate determination.

The second, where the dissent is grounded upon substantial evidence that there has been material misconduct by another arbitrator which may have affected the award. Indeed, under such circumstances it is arguable that the dissenter is duty-bound to issue a dissenting award. That scenario appears more likely in a private-arbitration setting, where the protections and requirements of rules of an arbitration association, such as the AAA, may not be available to prevent or correct any such misconduct long prior to issuance of an award.

The third, where there is an interim, non-binding project ADR process involved, and/or the interim awards are inherently subject to further review, either by a court, a "chief engineer," or a final arbitration panel. There, too, dissents can be important and useful to the final resolver, or even the parties resolve or avoid further disputes as the project continues.

A separate dissenting opinion serves no purpose if the arguments of the minority are analyzed in the award. In that case the minority arbitrator can and should note his disagreement by not signing the award. A dissenting opinion is useful only in rare circumstances such as where the majority chooses to ignore a dispositive legal issue.

Judge Gerald Harris:

I believe that the best approach to a disagreement among members of a Panel would be to work hard to resolve differences, reviewing the evidence and reexamining one’ conclusions. A willingness to compromise should be considered so long as the result would not impair a just result. Though every reasonable effort should be made to avoid a dissent, if an arbitrator cannot conscientiously join in an award a short dissent may be in order but it should be a rare occurrence.

Paul Marrow:

The key to an arbitration that is useful is an award that the parties will respect. Nobody likes to lose, that's obvious. But there is actually something worse than losing. I'm referring to a concern that the losing party wasn't heard. So in this context a dissent can be quite useful. It tells the loser that the effort to be heard wasn't in vain. Knowing that someone heard and considered can go a long way to helping a party move on beyond the dispute.

Some fear that a dissent will serve as a road map for a motion to vacate. A well drafted dissent takes that concern into account. As long as the dissent is focused on the merits of the issues in the dispute, there should be no reason for concern. A proper dissent does nothing more than tell the parties that there is more than once way to interpret evidence and law. The FAA doesn't allow for vacating based on a differing view of the merits of a dispute.

The last question, i.e., who should pay? All parties benefit from an award that is respected. If a dissent helps to realize this goal, it stands to reason the cost should be borne by all the parties.

Dissenting opinions in tripartite labor arbitrations--if not bitter--may assist parties to better understand and improve their on-going relationship.

However, in "one off" commercial cases, dissents only encourage the non-prevailing party to pursue what--most often--will be a fruitless appeal.

Pat Westerkamp

I agree with the others that a dissent usually does not serve a purpose, however, in situations where the wing arbitrators are party appointed the wing arbitrator who is on the "losing side" may feel it necessary to send a message to the party that appointed that arbitrator. In such a situation the dissent may not serve an "arbitration purpose" but rather a political one, and is justified.

Edwin H. Stern:

An arbitrator, like an appellate judge, should try and reach consensus(except where a dissent serves a useful purpose for further review). But there are cases in which, for any number of reasons, consensus cannot be reached. A dissent really serves little useful purpose in terms of the result of a binding or contractual arbitration (except, if it relates to a statutory basis to vacate the award---which is unlikely), but one who disagrees with the result must not agree merely because he or she is outvoted. An arbitrator who wants to disassociate with an award should be entitled to do so as a matter of conscience

Stephen A. Hochman:

I believe an arbitrator should endeavor to decide disputes correctly based on the applicable law as though he or she were a judge, and to do so as efficiently as possible. Canon 1.A of the Code of Ethics for Arbitrators in Commercial Disputes states that “An arbitrator has a duty not only to the parties but also to the process of arbitration.” In furtherance of that duty, I believe an arbitrator should (1) explain the reasons for his or her award (unless the parties have agreed otherwise) and (2), if the other two arbitrators issue an award that deviates from that ethical duty, write a reasoned dissent.

For example, I dissented in a 1996 NASD (now FINRA) case in which the chair and I, both lawyers, agreed that the brokerage firm breached its duty to the customer, although the non-lawyer industry arbitrator disagreed on the liability issue. However, there was no disagreement on the amount of the customer’s damages. After the chair was unable to convince me to join in a unanimous award for one-half of the customer’s damages, I explained in my dissent (1) that my co-arbitrators’ unexplained award was inconsistent with the result that would have been available in court and (2) that, although arbitrators are not required to follow the law, arbitrators should decide disputes in accordance with applicable law rather than on the basis of their own subjective notions of justice and equity. Similarly, I dissented in a 1991 AAA employment case in which my co-arbitrators issued an unexplained award in favor of an employee because they thought it was fair and equitable to do so despite the fact that the award would not have been available in court.

I believe that dissents to legally erroneous awards can enhance respect for the process of arbitration.

I don't favor the publication of dissenting opinions. In a panel of 3 arbitrators, if consensus can't be reached, then it is sufficient for only the 2 arbitrators in the majority to sign the award, and the dissenter can simply not sign. While some of the posts articulate situations where a dissent may be appropriate, on balance they should be avoided in the vast majority of cases.

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This page contains a single entry from the blog posted on October 14, 2017 8:09 AM.

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