Thinking Like a Lawyer vs. Thinking Like an Arbitrator

I posted previously about how “thinking like a lawyer” — an appropriate mindset when serving as an advocate — can be a hindrance when acting in a different law-related role: that of a mediator. Here, I’ll share my thoughts on the mental adjustments a lawyer needs to make when serving in another dispute resolution capacity: that of an arbitrator.

Exorcise your pre-conceived notions.

A seasoned lawyer’s experience and familiarity with the law serve the primary purpose of arbitration, which is to provide an efficient but fair forum for deciding disputes. On the other hand, a lawyer’s immersion in an area of law also will have left him or her with certain pre-conceived notions that might lead to prejudicial thinking when deciding a case in arbitration. If you have predominantly represented parties on one side (plaintiff or defendant) or handled a high volume of cases with similar issues, it would be difficult to hear a case as arbitrator and not be tempted to generalize or jump to conclusions based on your experience (“Oh, it’s one of those cases. I know how those should turn out.”).

Lesson: Put to good use your familiarity with the law, but be honest with yourself and accept that you’re prone to prejudice, just like anyone else. Step back, play the devil’s advocate in your own mind if you have to, and decide the issues of the current case even-handedly, based on the facts as presented, not by analogy to cases you’ve handled as an advocate.

Be clear about the rules (or lack thereof).

Arbitration is meant to be a less formal, and thus more efficient, dispute resolution process than trial. Accordingly, the procedural and evidentiary rules are usually relaxed, and sometimes left largely to the discretion of the arbitrator. As an advocate, you generally appreciate this, as it makes your job easier by simplifying or disposing of the tedious details of authenticating documents, etc. Understandably, when finding yourself in the role of arbitrator, you may be tempted to play fast and loose with the rules, as long as there’s no controversy. But once you’ve set that precedent, it may be difficult to change course and tighten up on the rules if controversy erupts — if a party unexpectedly objects to a key piece of testimony as inadmissible hearsay, for example, or a document that had not been disclosed in discovery is offered into evidence.

Lesson: Make sure you and counsel are clear on what procedural and evidentiary rules are designated or stipulated to apply at the hearing and have a current copy of them on hand (either on paper or digitally). Advise counsel that while you’re willing to observe less formal procedures as authorized, you won’t hesitate to employ the rules as necessary to decide any controversy that appears. And if an objection arises, make like a good judge: hear both sides, issue a clear ruling, and explain what you’re deciding and why.

Splitting the baby, responsibly.

In law, “splitting the baby” is usually used as a pejorative, referring to an overly simplified compromise. But recall that the term stems from the biblical account of King Solomon, whose wisdom allowed him to determine which of two women was the true mother of an infant. Solomon was revered not for actually cutting the baby in half, of course, but for using the threat of doing so to prompt the actual mother to sacrifice her own claim to the child rather than see the child be harmed. If you serve as an arbitrator for a while and you do a good job, you’ll eventually be accused of metaphorically splitting the baby by giving each party half of what it wants, rather than making a tougher but more one-sided decision. While splitting the baby is an easy criticism to fling, the reality is that it often results in the fairest outcome. Under the great Bell Curve of Life, most disputes that get even as far as arbitration have legitimate arguments on both ends, with truth and a just result lying somewhere near the middle.

Lesson: Splitting the baby is okay, but only if you’re convinced it’s the right result. Don’t do it just because it’s easier or you fear being seen as unfairly favoring one of the parties. Have a rational basis, founded on the facts of the case that justifies your decision. For example, if you’re awarding general damages in an injury case, base your dollar award on something calculable (such as the length of time the plaintiff required treatment, as evidenced by medical records, multiplied by a dollar figure that reasonably reflects the value of the activities the person was prevented from enjoying during that time). Of course, there’s no perfect formula for that, but you’ll sleep better at night if your decision is based on specifics, rather than simply awarding something halfway between what the two parties suggest.