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Split the Baby - What are your thoughts?

While it is a common misperception that arbitrators (at least in commercial matters) "split the baby" in issuing a final award, how prevalent do you think it is that they do so in ruling on information exchange (discovery) disputes?

Please provide your thoughts/comments below.

Comments (12)

I think that the 'split the baby' charge is likely false in the main. In many of my cases, one side has all the weight of evidence, and it would be incorrect to not consider that in the award, giving one side most of what they claimed. On the other hand, there are plenty of cases that have grey areas and uncertainty in the evidence. They are the ones that lead to partial awards and the all-to-simplistic 'split baby' charge. Let those who make the charge sit in on a case before they jump to conclusions.

I see neither pattern nor prevalence regarding "split the baby" in arbitrator resolution of discovery disputes. Such a practice would send the wrong message to parties that already ignore process economy and efficiency. Requiring the arbitrator to resolve discovery disputes reflects laziness in the parties and ignorance of the time and effort conscientious arbitrators spend getting discovery dispute decisions right.

Michael Orfield:

While I have heard this mentioned, I also do not believe that this is any where near the case. The insult built into the perception is that arbitrators wish to get business in the future so will give both sides something in order to curry favor. This is repugnant to every Arbitrator I know. You call the evidence as you see it. Indeed, it is good to examine any improper motives you might have to make an award. But the system, to my observation, is healthy and just.


In ruling on discovery issues, such as the scope of a document request, a balance needs to be struck between the requesting party’s need for information and avoiding turning the arbitration into a court proceeding. In this sense, there is a “splitting of the baby”; however, this type of balancing is in my view an appropriate one. By contrast, in issuing a final award, arbitrators should not not seek to split the baby on the claims and defenses of the parties , but should instead decide each claim on its merits.

Dave Daniels

Judge Gerald Harris:

There is really no compromise in ruling on discovery disputes. Either the information sought is appropriate and not overly burdensome to furnish or it beyond the expedited and cost efficient goals of an arbitral forum and of little probative value. That’s not to say there is no leeway in making the rulings but “splitting the baby “ should not be a factor in doing so.

Discovery disputes often involve one party seeking excessively broad categories of information and the other party seeking to be as restrictive as possible in disclosing information. The resolution of such disputes just as often involves narrowing such overbroad requests to manageable inquiries focusing on relevant subject matters. The result is each party partially prevails and is partially unsuccessful in its position. While some may call this splitting the baby, it is the essence of an arbitrator properly managing the process to permit meaningful information exchange in a fair and efficient manner that does not unduly burden the parties or mirror court litigation.

Mary Austin:

Hopefully, it isn’t too common; it certainly feeds into the misperception that this is all that most arbitrators do. There are cases, often with feuding business relationships, where the fault does seem equally distributed. Where that is the case, the arbitrator’s decision should carefully explain the relative liabilities and refrain from the approach of “a pox on all your houses.”

Dani Schwartz:

This topic was briefly discussed at a NYSBA committee meeting some months ago and the response was adamantly against splitting the baby.

I find that in ruling on discovery request disputes, compromise (i.e. splitting the baby) is more routine than not. Generally arbitrators try to be fair while always mindful of excessive discovery requests.

William Pastor:

I believe that compromise verdicts are uncommon. They may *appear* to be more common than they really are. Why? Because both parties frequently ask for more than they can truly back up with conclusive evidence. When the award falls somewhere between the two parties' positions, it may *seem* like a compromise verdict, but in fact not be anything of the kind.

I remember such a case vividly. There were several issues and claims, and the three of us on the panel worked through each issue separately, without the slightest consideration of the overall dollar amount asserted by either side. We felt that each issue could be determined with almost mathematical precision, based on the evidence we believed. When we tallied up our calculations of the subparts, the bottom line fell almost exactly midway between the assertions of the two sides. Anyone looking at the result would have a suspicion of a compromise verdict. And yet I was part of the process and know that a compromise verdict never for a moment entered the picture.

I agree with Al Appel.


Sometimes lawyers think you are splitting the baby when you are just being fair, either in a preliminary ruling or acting on the evidence. For example, a claimant may prove liability but not the level of damages he or she seeks. That's not baby splitting, that's making a decision.

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