Basic Skills for the New Arbitrator [Paperback]

The private arbitrator will find this easy-to-use book extremely valuable. The detailed table of contents will permit the private arbitrator to use this book, even during the hearing when issues arise. -- National Institute for Dispute Resolution News, April, 1997 --This text refers to an alternate Paperback edition.

This book provides a detailed overview of arbitration, from the pre-hearing phase through the hearing and deliberation of the award. It guides the new arbitrator through the arbitration process by answering the one hundred questions most frequently asked by new arbitrators. This book has been used successfully for self-instruction and as a training manual. It is not just for new arbitrators! Experienced arbitrators and attorneys who represent clients in arbitration will find this manual extremely useful. The discussion of evidentiary concepts is especially valuable for non-attorney arbitrators, who must deal with the evidentiary vocabulary of the legal profession. You will learn to provide the necessary ethical disclosures, conduct a preliminary conference issue pre-hearing orders, establish a discovery schedule, resolve discovery disputes, deal with attempted delays, preside at a hearing, render an award, and avoid prejudicial conduct.

I wrote Basic Skills for the New Arbitrator as a "hands-on" book to be used for self-instruction or as training text. When I began serving as an arbitrator in the early 1980's, I could not find any practical instruction material such as this. This book is based upon my fifteen years of arbitration experience. --This text refers to an alternate Paperback edition.

Allan H. Goodman is a private mediator, arbitrator, and trainer. He lectures extensively on alternative dispute resolution techniques and is the author of the companion volume, BASIC SKILLS FOR THE NEW MEDIATOR. He is a graduate of the Georgetown University School of Foreign Service and the University of Toledo College of Law, a member of the bars of the District of Columbia, Maryland, and Virginia, and an associate member of the Society of Professionals in Dispute Resolution (SPIDR). From 1975 to 1993 he was an attorney in private practice. He is currently a Judge on the General Services Administration Board of Contract Appeals, and an adjunct professor of law at the Georgetown University Law Center. --This text refers to an alternate Paperback edition.

The Myth and Reality of Arbitration - There is a myth about arbitration. As an attorney, I heard it from clients and fellow attorneys. Not until I rendered my first arbitration award did I have personal experience that the myth was probably not true. Yet, the myth persists, usually in the following form:

"Arbitration? That's when you don't go to court, but pick somebody to decide the case informally, and you go and discuss it with the arbitrator and the arbitrator will usually split the baby' - you know, give you at least half of what you ask for."

This myth is not only factually inaccurate as it applies to arbitration today, but it is historically inaccurate as to the original dispute to which it refers. The story of King Solomon's first arbitration does not support the arbitration myth. Let us first consider testimony of the witnesses in the original "split the baby" incident.

Two women came before the King. The first woman said "This woman and I live in the same house. I gave birth to a child and she gave birth to a child. During the night, her child died. She arose in the night and took my child, and laid her dead child on me. When I awoke to nurse my child, he was dead, but when I looked at him closely he was not my child."

The other woman spoke. "No, the live one is my son, and the dead one is yours." But the first insisted, "No the dead boy is yours; mine is the live one." And they went on arguing before the King.

At this point, King Solomon rendered an interim award.

"Fetch me a sword". A sword was brought before the King and the King said, "Cut the live child in two, and give half to one and half to the other." In response, one of the parties requested modification of the award.

But one of the woman pleaded with the King, "Give the live child to her, only do not kill it." The other insisted, "It shall be neither yours nor mine, cut it in two."

Faced with this additional testimony, King Solomon modified his award.

Then the King spoke, "Give the live child to the one who pleaded for its life - and do not put it to death; she is its mother."

It is important to note what King Solomon did not do. He did not split the baby! What then is the reality of arbitration? From the arbitrator's perspective, my personal experience is that in rendering an arbitration award, I do not "split the baby." In fact, I have never been tempted to do so. The parties are not looking for a simplistic 50%-50% compromise solution, or else they would have settled the matter themselves. If they do wish to compromise, they still may do so at any time after arbitration is initiated. In most instances, I have either granted a claim in full, or almost in full, or denied a claim in its entirety. Generally, in commercial disputes, if a party is correct in its position, and meets its burden of proof, it will prevail. If it is not correct in its position, or fails to meet its burden of proof, it will not prevail. In claims that consist of various smaller claims, some are granted and some are not. If the claim is not supportable, I deny it. I do not reward a claimant half of its claim for just "spending the time".

The reality of arbitration from the parties' perspective is that the parties will always know more about the dispute than an arbitrator ever will. They have lived with the situation until it evolved into a dispute. Even when the time arrives to make an award, the arbitrator may still know less than the parties know. In any situation involving advocacy, the trier of fact is left with the "spin" that the parties place on the facts. Even so, if the arbitrator has performed the duties of the position well, and taken appropriate steps to control the process so that the necessary information is submitted by the parties, the arbitrator can arrive at a reasoned, supportable decision.

Your function as an arbitrator is not to give a party to the arbitration an "A" for effort, nor an "A" for anger and indignation. Your compassion for the situations presented to you must be tempered with objectivity. Your responsibility is to render an award based on the evidence. You may recall that when Solomon became king, he realized the difficulty of the decisions he would be required to make. His fervent prayer was for an "understanding heart." --This text refers to an alternate Paperback edition.