Employees and consumers are no stranger to arbitration clauses in employment, product and service contracts. Arbitration clauses are somewhat of an enigma and may be confusing, but rest assured, arbitration has the ability to deliver a final dispute judgement outside the court system that is fair, efficient and economical. This may sound almost too good to be true, but let us share what arbitration is:
1. The ability for the parties to mutually select the arbitrator for their case. Unlike litigation, parties have the ability to select an arbitrator who is known to be fair and familiar with the elements of their conflict
2. Arbitration is binding with little room for decision review or reversal
3. Arbitration is flexible in format and discovery – and freely entered into
4. And, unlike court litigation, arbitration proceedings are confidential.
Patience of Job, Wisdom of Buda, Control of Obi Wan Kanobi – Your Arbitrator
We believe the chosen arbitrator will define the process and outcome of the dispute resolution. We see five important arbitrator qualities necessary to achieve a fair and mutually agreed upon decision:
1. Before, during and after arbitration, the arbitrator assures that all parties understand and appreciate the power of the ruling – agreement and understanding avoids challenges.
2. Arbitrators may be creative in hearing testimony and admissible discovery. This is a major benefit of arbitration format and arbitrator skills. An arbitrator who is flexible in the timing of testimony presentations and hearing format while keeping the respect of both sides is fundamental to mutual agreement.
3. One of the most valuable aspects of arbitration is the ability of both sides to confer with each other and with the arbitrator. Unlike court proceedings, a fair arbitrator will recognize the value in cross parties discussion and will remain open to questions addressed to the arbitrator during the process.
4. The arbitrator must have the knowledge and good judgment to allow necessary evidence but also to be able to control unnecessary discovery. In short, a good arbitrator needs to know what is essential and what is superfluous. Keeping with the fast, fair, flexible and binding rulings, the arbitrator needs to have the wisdom to recognize superfluous discovery or discovery requests.
5. Finally, a good arbitrator must have essential knowledge of the key elements of the subject being disputed. Unlike the trial juries who must be educated in important concepts, the arbitrator has knowledge and experience in the issues being discussed frames the proceedings.
Revered (meaning fair, efficient and respected) arbitrators are a rare mixture of ethical stature, knowledge, and organizational strength. Some of these qualities are driven by personality and sense of moral obligation. This is not to say positive arbitrator traits cannot be learned (we address this next month). Arbitration may very well be your wisest selection of method for dispute resolution. Our message: be informed, be selective and be involved. As always – please send your questions and comments (we love them!)