Length of Award - What are your thoughts?

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What steps can an arbitrator take in writing an Award to avoid an excessively long Award? Are there components of awards that are unnecessary or can be presented more succinctly? On the other hand, do the reasons that arbitrators write long awards outweigh the benefits of arbitrators striving to write shorter awards? Should Awards not exceed 50 pages or have no page limit?

Please provide your thoughts/comments below.

Thank you to Dana MacGrath and Steve Skulnik for this week's question from a recent program.

12 Comments

Better too long than too short. If there's something I see regularly that's worth skipping it's a long recitation of the procedural history or the facts of the case, that have no bearing on the final result. When I'm drafting an award, I'm thinking of the reviewing court, but I'm primarily thinking about the losing party. I want to be sure that all of the arguments of losing party are addressed and that the loser understands why those arguments didn't prevail. I'm not too worried about the winner on any given issue. I do, however, want to be sure that the losing party comes away from the process knowing that they were heard and knowing why they lost. You can't put a page limit on that. It just depends on the case.

As the length and comprehensiveness of the award translates into dollars, I generally seek guidance from the parties as to how detailed a reasoned award they seek, i.e. whether to set out findings of fact and conclusions of law, whether to address all of the evidence and/or legal theories addressed by the parties, or whether to simply address the evidence or legal argument found to be dispositive. I have found most parties tend to agree as to which direction to go, especially once the hearing sessions end.

I see this as one of the Catch 22 situations in arbitration. In most cases I have been involved in, the parties want a simple statement - Party A must pay party B $X, or something similar. However, I may have worked long hours mulling over the evidence in coming to that decision. My inclination is to share that path with the parties, so they can know that I considered all the evidence and decided what was important. But then that can very act can give the losing party just the ammunition they need to challenge the award. So I keep my pencil quiet and only tell them what they have asked for in the demand.

The arbitration award, whether issued by a sole arbitrator or a panel, whether it is an "award with reasons" or a "reasoned award" should essentially address the issues raised by the parties and the relief requested. So long as the award adresses the issues raised and the relief requested by the parties, I do not believe that there should be a page-limit imposed on the arbitrator (s) in writing their award. In any event, the award should not become wordy and or unnecessarily lenghthy. The arbitrator (s) should endeavvor to stay within the bounds or the arbitration agreement and the facts or the case. It is a delicate balance that is usually easy to strike when the arbitrator (s) recognize that the reader of the award should have no problem interpreting the wording and the intent of the award without having to request a clarification of the award. An award well written should stands alone and be devoid of any ambiguity, contradiction or equivocation.

The arbitration award, whether issued by a sole arbitrator or a panel, whether it is an "award with reasons" or a "reasoned award" should essentially address the issues raised by the parties and the relief requested. So long as the award adresses the issues raised and the relief requested by the parties, I do not believe that there should be a page-limit imposed on the arbitrator (s) in writing their award. In any event, the award should not become wordy and or unnecessarily lenghthy. The arbitrator (s) should endeavvor to stay within the bounds or the arbitration agreement and the facts or the case. It is a delicate balance that is usually easy to strike when the arbitrator (s) recognize that the reader of the award should have no problem interpreting the wording and the intent of the award without having to request a clarification of the award. An award well written should stands alone and be devoid of any ambiguity, contradiction or equivocation.

Awards should be as long as the need to be. Reasoned awards should logically and coherently explain the reasons for the tribunal's decision with an eye toward two audiences: (a) a reviewing court and (b) the parties: The tribunal's goal is to draft an enforceable award and one that even the losing party can appreciate, even if it does not like the result. A page limit is unworkable, although one wonders whether exceptionally-long awards (e.g., 100+ pages) could be shorter without compromising (a) or (b).

This is an issue that doesn’t have only one correct answer. Like a lot of issues we face, it depends. First and foremost, what do the parties expect? That issue should be discussed at the first scheduling conference, at the last pre-hearing conference before the hearings, and perhaps after the record is closed. I, for one, start writing the award well before I have heard any evidence, because I believe the parties want to know that the arbitrator(s) understand the issues that are being raised and tried. A summary of the claims and defenses accomplishes that objective. I think the parties also deserve to know that their witnesses, key exhibits, and contentions have been heard and understood, so a summary of each of those matters should also be included in the award. Finally, the arbitrator(s)’ reasoned conclusions are vital and the details should, in my judgment, not be truncated. Once again, the parties deserve to know their arguments have been heard, understood, assessed, and decided upon. The length of such an award will be dictated by the needs of the parties and the particular case.

To shorten the award, which I favor, I would eliminate lengthy description of the parties' claims and contentions and focus only on their positions on the dispositive issues. I present the salient facts in summary fashion,distinguishing between events that are undisputed and events with two competing versions.
I can't imagine needing to write a 50-page award, but excellent arbitrators have told me they have done so.

Most cases involve two or three central issues on liability and one on damages. Have the courage to simplify but be sensitive to conveying the fact that you considered all of the testimonial and documentary evidence. Know the legal basis for your decision and reference citations from party submissions. In the end, it is your decision and you want to make sure it will withstand a motion to vacate. Be strong in your determination. You are not writing a court decision for the ages.

I agree with Davids Wilson and Brodsky.

I will of course let the parties guide me. If they don't want a reasoned opinion, I won't do one. However, I generally like to provide a reasoned award because it helps me think through all of the issues, to respond to as many of the material arguments as possible, and frankly, to explain to both sides why one won and the other lost. Which, in my judgment, is something we should be doing as most parties want to know the why as well as the what. I don't worry terribly about providing fodder for an appeal. They are rare and rarely successful. And if I am wrong, I am wrong. I have never however issued anything remotely as long as 50 pages. I agree with those who have commented that the procedural history is rarely worth reciting, summarizing facts that are not important to the decision should be avoided, and there is zero reason to turn an arbitration award into specific findings of fact and conclusions of law unless the parties both request that.

I agree with David T. that it is better to err on the side of length rather than brevity in explaining the rationale for an award. Nothing is more frustrating to a losing party than feeling that its arguments were ignored or given short shrift. Providing detailed reasons for an award is important not just for the losing party but also for the party who position has only been partially accepted (e.g., a claimant who receives only a fraction of what they requested). I further concur with Dustin that writing a reasoned award helps me weigh the competing arguments and evidence. This is akin to the approach taken by litigators of drafting a motion to "see how it reads."

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This page contains a single entry by Jeffrey Zaino published on April 29, 2022 12:44 PM.

Ancillary issues that may be material to the Tribunal's determination - What are your thoughts? was the previous entry in this blog.

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