Monday, August 29, 2011
First Post.
I found the approach of arbitration as a kind of science quite interesting. I had never viewed communication as being broken down into discrete groups of information processing. While the whole investigation into how arbitrators listen, understand, and make decisions on advocates' cases was useful, it seemed to me that keeping all this information about arbitrators straight would be difficult while in the process of advocating ones case. At the same time, it was useful to recognize that arbitrators seem ultimately human; arbitrators are still the product of their environments and cultures, and knowing what makes them tick and what attitudes they hold seems to be the key to strong advocacy. While this makes sense, I was somewhat discomforted by the feeling that this bordered on manipulation. I got the impression that having the best case or being "right" did not win you any favors; rather, having a good message and selling it well to your arbitrators (by understanding their culture, their biases, their attitudes, etc.) would take you a long way. It seems, then, that teams who can afford the time and money to hold mock arbitrations and investigate the arbitrators tendencies will inevitably have a better impression at the hearing, which does not seem quite fair.
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I was similarly intrigued by how communication was broken down into group of information processing; however, it seems that we have reacted to learning this information is two very different ways (there's that deep structure system at work!). In my opinion, an arbitration panel - made up of individuals with different experiences and biases - may try to be impartial but will inevitably be swayed by their own subjectivity, if only at a subconscious level. This, to me, is a fact that cannot be changed by arbitration culture or practice, and that therefore cannot be ignored. For this reason, I think it's essential that an advocate focus not only on the facts but also on the message.
ReplyDeleteI agree with Jenn. I feel that as advocates, we need to find a way to deal with the fact that many arbitrators have already made up their minds on issues before they go through the formal process of arbitration. Certainly, this is a great disadvantage to at least one of the advocates. Since the facts cannot be denied, the best we can do is work on the message we send to the arbitrator.
ReplyDeleteWe'll talk about the strange, consolidated role of the arbitrator as jury, trial judge, and appellate panel as well as the surprising difficulties in finding out about arbitrator decisions.
ReplyDeleteI agree that it does not seem quite fair, and it is unfortunate that it seems we are forced to focus on something that has not much to do with what we are trying to achieve at all, but instead have to focus on tailoring the message toward the person we are trying to convince. However, the arbitrators are in fact human, so I suppose that it is the same concept as trying to sway any other person during a discussion.
ReplyDeleteI also felt the authors focused to much on the importance of how to convey the message to the arbitrators, almost making it seem like actual communication skills and awareness of the arbitrator's attitude was more important than the actual substance of the case. In practice though, I believe it is probably wiser to have a balance; that is, dedicate as much time in preparing your case, the pros and cons of your argument, as well as thinking about how to most effectively convey your message in a way that the arbitrator will be swayed to your side.
ReplyDeleteIt's interesting to see the different reactions we are having to the reading. I'd have to agree that it doesn't seem "fair" if the legally correct argument doesn't win. But then, I have to consider the fact that "legally correct" isn't the same in all places and that's why arbitration is so useful on the international stage.
ReplyDeleteI suppose the main take-away is that regardless of the reality of your case, you must be prepared to the maximum and have every possible response pre-rehearsed to the point that you know what the arbitrator's internal questions are even if they don't vocalize them. The fact that Wittman's study shows 98% of plaintiffs win arbitrations make it seem unfair as well.
ReplyDeleteBuilding on what Linda Janette said above, not only do we have to deal with arbitrators' "deep structures", if we make the second opening argument, we need to override our opponent's attempts to confirm or influence the arbitrators in their attitudes!
ReplyDelete"have every possible response pre-rehearsed to the point that you know what the arbitrator's internal questions are even if they don't vocalize them." JL's point about the ability to afford mock arbitrations being unfair is well-taken; on the other hand Lauren's point just quoted offers a way to partially accomplish the same thing through individual effort.
John Roberts used to walk around his law firm with a legal pad and ask people for more questions the Supreme Court might throw at him.