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Arbitrators Discussing Substantive Case Issues - What are your thoughts?

How much should arbitrators in a three person Tribunal discuss amongst themselves any of the substantive issues in the case prior to the close of testimony?

Please provide your comments/thoughts below.

Comments (13)

They have to. It's their job. They should take care to do so only when all three are present.

Barry Evenchick :

As much as three appellate judges might discuss such matters among themselves before reaching a decision. I see no harm in the panel members doing so.

Judge Gerald Harris:

Some discussion of substantive issues among Panel members may be triggered by the need to make rulings on motions or objections made during the coarse of the hearing. Such a discussion may also be necessary to determine whether the Panel feels a need to request additional evidence on a particular subject. Importantly, the discussion must not lead Panel members to form any conclusions concerning the merits until the hearing has been concluded.

Michael Orfield:

You first assume that a deeper understanding of the issues, from any source, is good. I treasure the opportunity to work along side some excellent arbitrators. No one is out to impose themselves on the other panalists, but to gain a better understanding of the case by hearing from some respected sources. Good arbitrators did not get to this position by being pushed into a decision. As long as each panelist respects the independence of the other two, the thoughts and ideas of the other two are welcome.

Discussions among three neutral arbitrators regarding the substantive issues in the case, during the presentation of the case, is appropriate to the extent the discussion focuses on what the panel needs, in terms of evidence and law, to support the claims of the parties. Early conclusions regarding the merits of the case are not helpful, and may indicate an arbitrator is not carefully weighing the evidence. However, discussions by panel members to gain a consensus of what the advocates need to provide to win their case can be helpful to both the panel and the parties: to the panel, to make sure they are all on the same page, and to the advocates, to make sure they are providing everything they can to allow the panel to make a fair and informed decision.

Michael Orfield:

One of the most important sources of understanding a case is the thoughts and observations of your fellow panelists. Everyone respects the independence of each panelist, but each panelist respects the opinions of the others.

I don't think it's appropriate to discuss issues that directly relate to an award during the evidentiary hearing. However, I find it helpful to deal with procedural questions related to the presentation of evidence as they come up, instead of later on.

For 7 of my 30 years I served as a as a Judge on hundreds of NY Appellate Division panels of 5 Justices hearing a variety of simple and complex cases on almost every issue that came to us. None of us was an expert on every issue. We occasionally spoke among ourselves before oral argument when one or more of us needed to better understand either the issues of fact or of law that we had never seen before or that we did not understand. This was infrequent, but sometimes necessary. These conversations among some or all of us on the 5 person Panel gave us a better understanding of the issue(s) in the case, if at least one panel member was willing and able to provide us with a pre-argument teachable moment. I would recommend that, after the lawyers' arguments are presented orally or in writing and the panel adjourns to the conference room to decide such a case, the full panel reviews the issue previously discussed pre-argument. In rare instances I needed to engage in that process - pre-argument - to help me (or us) better understand the case which I would soon be hearing or reading.
Justice George D. Marlow (Ret.)

William G. Bassler:

I think it is appropriate to discuss substantive issues to assist in making sure the Panel is focused on the critical critical issues in the case with the understanding that the Panel is not taking positions prior to the evidentiary hearing but only expressing provisional thoughts subject to revision.

John A. Maher:

It is helpful and, in my opinion, entirely appropriate to discuss substantive issues while the hearings are underway in order to make sure the parties are addressing the issues we need to hear. However, we must be careful to avoid any discussions about conclusions drawn from the evidence until after the close of the hearings.

Antonio Bologna:

Since each member of any given tribunal brings certain expertise based on education, experience, practice, etc., I feel that open discussions between the panelist is appropriate to reach clarity on the issues before the panel. However these discussions must respect the opinions of the other panelist and should not be for the purpose of influencing the other panelist prior to the conclusion of the hearing and commencing deliberations.

Antonio Bologna:

Since each member of any given tribunal brings certain expertise based on education, experience, practice, etc., I feel that open discussions between the panelist is appropriate to reach clarity on the issues before the panel. However these discussions must respect the opinions of the other panelist and should not be for the purpose of influencing the other panelist prior to the conclusion of the hearing and commencing deliberations.

Margarita Echevarria:

The diversity of the panel in experience from both a time and practice perspective make the discussion of substantive matters an important part of facilitating the arbitration process. I agree with others that the discussion should not impact the independence of the panel.

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This page contains a single entry from the blog posted on January 13, 2019 10:25 AM.

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