Fourth in a Continuing Series on Umpire Best Practices
Eric Kobrick is an ARIAS U.S. Certified Umpire and Arbitrator with deep experience with the arbitration process. He has served on 50 arbitration panels, many as umpire. He is also a former AIG Senior Vice President and Deputy General Counsel where he held a variety of senior legal positions, including as Chief Reinsurance Legal Officer and General Counsel of Validus Re. Here are his views on how to conduct effective deliberations in response to a series of questions:
1. As an umpire, what strategies do you use to conduct an efficient and effective deliberation?
There is no script or form to follow, but there are several overarching points I think are important.
First, you need to get the timing right. The Panel should not commence deliberations until the hearing is finished, including any post-hearing briefing. If a panel starts discussing the case during the hearing based on only part of the evidence, you risk anchoring the panelists’ views on the merits prematurely. Once the hearing and any briefing is concluded, you need to strike a balance between holding deliberations soon enough after the hearing so that the evidence is still fresh in the panelist’s minds and creating enough space to provide the panelists with time to review the evidence and gather their thoughts. Also, it is preferable to find one (or more) long blocks of time to deliberate as opposed to many short time blocks, which can be disruptive.
Second, I think it is important to have deliberations in person, if possible. While online is certainly more popular and easier to schedule, computer issues can distract the panel, the ability to review documents together is hampered, and it is more difficult to “read the room” and form a collaborative bond among the panelists.
Third, I think an umpire needs to be flexible in how to conduct the deliberation. Some arbitrators prefer to set forth their thoughts in writing first before beginning deliberations, others prefer to discuss their thoughts first and then put them in writing, and still others don’t feel the need to put anything in writing. There is no right or wrong way, and the umpire should seek to accommodate the arbitrators’ preferences. An umpire may consider steering the arbitrators towards putting their views in writing if the issues in the case are particularly complex, the party arbitrators don’t seem to be able to communicate orally very well with each other (despite your best efforts), and/or the panel can’t seem to find sufficient blocks of time to deliberate (again, despite your best efforts!).
Fourth, as umpire, I think you need to be a good listener; you will likely have your own views, but I think it is important to stay quiet and let the party arbitrators express their views fully before you share your perspective. Your position may very well change after hearing your co-panelist’s views.
Fifth, you need to treat everyone with respect, and you need to make sure the party arbitrators treat each other (and you!) with respect. This should go without saying, but deliberations occasionally get contentious, and professionalism is sometimes a casualty of that. The umpire needs to ensure that this doesn’t happen.
Finally, you need to keep everyone focused. Nobody benefits from debating irrelevant issues or issues on which everyone agrees. Similarly, you need to ensure that improper influences do not affect the deliberations, and that the panel ultimately decides the issues presented in the arbitration objectively and justly.
2. How do you structure and start the deliberation? When and how do you contribute to the discussion as umpire?
As I mentioned, I like to hear the party arbitrators’ opinions first. I will typically ask “Who wants to go first?” That has never been an issue, but in the unlikely event that both arbitrators insist on going first, I would let the petitioner’s arbitrator start. I try to confine my comments to clarifying questions until both have had their chance to fully state their views.
After the party arbitrators have expressed their opinions, my first concern is to make sure that all the issues have been addressed by both arbitrators. If not, I attempt to fill the gap to make sure we have covered the waterfront. I then attempt to identify the areas of agreement and disagreement and, with respect to the areas of disagreement, we discuss how we should go about resolving those disagreements.
3. How do you manage arbitrators who try to monopolize the discussion? Or discuss similar cases they previously worked on?
It is part of the job as umpire to deal with these situations head on. You owe it to both parties, to the panel and to yourself. For example, if one party arbitrator is constantly interrupting the other, you tell him/her to stop. You want to hear both arbitrators’ views, and it is a matter of common courtesy! And if an arbitrator is discussing extraneous information, you similarly need to tell him/her to stop unless he/she convinces you that the information is relevant to an issue before the panel. Also, it should go without saying that any conduct that would run afoul of ethics rules should be quickly squashed by the umpire.
4. How do you conduct a deliberation where the arbitrators are angry or upset with each other?
You occasionally get condescending people and people who do not like to be told they are wrong on a panel. You need to remind them that we are all charged with the same goal – to reach an objective and just decision – and that the focus should be on the evidence. An umpire needs to use his/her interpersonal skills to smooth over any hurt feelings and keep the discussion focused. I agree with one of Peter’s favorite expressions: “Let’s be hard on the issues, not on each other.” I also like to tell the arbitrators to “eliminate the adjectives.” Don’t tell me that party X’s position is absurd; tell me what the position is and how it is contrary to the applicable law/contract/facts, etc. If you persuasively do that, I will reach my own conclusion that the position is absurd!
5. If an arbitrator wants to submit a dissent, how do you manage the process?
As much as we should strive for unanimity, if one arbitrator doesn’t agree with the decision and wants to write a dissent, he/she has an absolute right to do so, in my opinion. As umpire, I want to know why he/she feels the need to write a dissent, and I will want to review the dissent before issuing the majority opinion. I believe the majority opinion should address all the issues that the dissent addresses or explain why it is not addressing certain issues. The award should include the majority and dissenting opinions.
6. Do you suggest compromise awards if the arbitrators are stuck taking diametrically opposed positions?
I don’t believe in compromise awards in the sense of “splitting the baby” to resolve a situation where the party arbitrators are taking diametrically opposed positions. The panel’s job is to issue a just award; if that means awarding complete relief for one party, that is what the panel should do. If that means issuing partial relief for one party, then that this what the panel should do. People might view a 50/50, 60/40, etc. award as “splitting the baby,” which I believe is used in a derogatory fashion, but if that is what the panel (or majority of the panel) feels is the just decision, I believe it is warranted.
7. If you ultimately agree with one party’s position after deliberations, how do you communicate that to the other party arbitrator?
You owe them an explanation, so I would take as much time as necessary to explain to that arbitrator the basis for my decision. Some arbitrators will “not take no for an answer” and dig their heels in and continue to argue. I will make a point to leave the door open to continued discussion and to keep an open mind for as long as I consider it reasonable. I want to make sure that the arbitrator felt he/she had a full and fair opportunity to express his/her views and that I understood them. Again, it comes down to respect. After I am convinced that all views have been fully aired and I have reached a firm view, I will end the discussion, politely but firmly.
