Magazine article Dispute Resolution Journal

Readers Respond

Magazine article Dispute Resolution Journal

Readers Respond

Article excerpt

When Arbitrators Should Discuss Evidence Redux

Except as noted below, I agree with Henry Pollard's letter responding to Terrill D. Albright's article, "Early Discussion of the Evidence: Why the Arbitration Panel Should Not Wait Until All the Evidence Is In" (Aug.-Oct. 2003 issue). I strongly agree that it would be a serious error not to have all members of the panel involved in every aspect of the evidence and the contract. I also believe, contrary to Mr. Albright, that the role of the panel should not be splintered by having one arbitrator focus on one issue and the other two arbitrators on other issues. I respectfully suggest that each arbitrator must review all of the evidence in order to insure the most intelligent and fairest award.

Contrary to Mr. Pollard, who favors a jury-type approach (deferring the discussion of evidence until deliberations), I do not agree with a process that would eliminate discussions among the arbitrators during the hearings, provided these discussions do not go too far. In my experience on cases involving many hearing days spread out over months, it is expedient for the panel to have discussions at certain intervals during the hearings. These discussions would not prejudge the evidence, and could produce meaningful new insights as the evidence evolves.

However, as Mr. Pollard opines, arbitrators should take extreme care to permit the parties to present their cases, and not do anything to create the perception that we are in any way usurping the role of the attorneys. We should not try to seek "missing evidence" or conduct cross-examination (both tasks for the attorneys) or openly criticize counsel's strategy, no matter what we may think privately. We are permitted to question witnesses, but we must be careful not to overstep our responsibility. We must avoid any actions that would create a perception that our neutrality is tainted. …

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