Early Discussion of the Evidence

By Albright, Terrill D. | Dispute Resolution Journal, August-October 2003 | Go to article overview

Early Discussion of the Evidence


Albright, Terrill D., Dispute Resolution Journal


Why the Arbitration Panel Should Not Wait Until All the Evidence Is In

The arbitration panel is one of the few deliberative bodies that ears evidence presented live and then renders a decision in ie dispute pending before it. Arbitrators must be trained in the applicable arbitration procedures and rules that will apply. Some organizations, such as the American Arbitration Association (AAA), provide such training. However, the issue discussed here-when the arbitrators should begin to discuss the submitted evidence-is not addressed in any arbitrator training rules. Thus, there is no well-accepted answer to help arbitrators decide how much discussion should occur prior to the submission of all proofs. The decision ultimately rests within the sound discretion of the panel.

On nearly every arbitration panel on which I have served, the arbitrators spend the first day-and-a-half attempting to decide the extent to which they should discuss the evidence that has been received. Arbitrators, particularly those with a litigation background, frequently do not want to discuss any evidence until all the evidence is in, adhering to the deliberative procedures enforced in most jury trials. jurors are instructed not to discuss the evidence with other jurors until all the evidence has been presented and they retire to deliberate.

In my view, arbitrators should not follow this practice because doing so needlessly delays the work of the panel. Moreover, refraining from early consideration of the evidence could ultimately have an adverse impact on the quality of the award.

I am suggesting not only that the panel should discuss die evidence prior to the final submission of proofs, but that it should begin these discussions at the first break after die first piece of evidence is presented at the hearing, and continue thereafter until the final decision and award is issued.

Before the hearing begins, the arbitrators should agree among themselves to this procedure so that all panelists know the rules that are going to be followed. Even those who are uncomfortable with this approach may recognize that the panel needs to be able to discuss whatever will help them make the most educated and fair award. Early discussion of the evidence can facilitate this and result in a speedier award to boot!

Is Evidence Missing?

While an arbitration case is not decided until all evidence has been received, most arbitrators have formed an impression of the case on a variety of issues well in advance of the final presentation of evidence. They often share these impressions in order to sound out their colleagues on the panel to determine if they generally share the same view. In complex cases, where there are multiple issues to be resolved, the arbitrators may need to discuss what evidence they need to resolve those issues. By discussing the evidence that has been submitted, they can agree on what is missing. If they feel that the parties have not presented evidence that is critical to making a decision, the arbitrators can then question witnesses concerning the missing elements.

Compelling Early Consideration

The arbitration rules of practice and procedure have made it possible for the parties to compel the arbitrators to consider the evidence well in advance of the conclusion of the case by allowing them to make dispositive motions, such as a motion for summary judgment. When such motions are made, the arbitrators must consider the sufficiency of the evidence and discuss at length the evidence relating to the claims and defenses. Arbitrators will be better able to deal intelligently and fairly, and on a timely basis, with the issues presented by dispositive motions if they have discussed the evidence at an earlier point in time.

Recalling Facts in a Long Hearing

The length of the hearing is a factor that can markedly affect the arbitrators' ability to organize the witness testimony and other evidence that has been submitted. …

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