Originally from Dispute Resolution Journal

The arbitration panel is one of the few deliberative bodies that hears evidence presented live and then renders a decision in the dispute pending before it. Arbitrators must be trained in the applicable arbitration procedures and rules that will apply. Some organizations, such as the American Arbitration Association (AAA), provide such training. However, the issue discussed here—when the arbitrators should begin to discuss the submitted evidence—is not addressed in any arbitrator training rules. Thus, there is no well-accepted answer to help arbitrators decide how much discussion should occur prior to the submission of all proofs. The decision ultimately rests within the sound discretion of the panel.

On nearly every arbitration panel on which I have served, the arbitrators spend the first day-and-a-half attempting to decide the extent to which they should discuss the evidence that has been received. Arbitrators, particularly those with a litigation background, frequently do not want to discuss any evidence until all the evidence is in, adhering to the deliberative procedures enforced in most jury trials. Jurors are instructed not to discuss the evidence with other jurors until all the evidence has been presented and they retire to deliberate.

In my view, arbitrators should not follow this practice because doing so needlessly delays the work of the panel. Moreover, refraining from early consideration of the evidence could ultimately have an adverse impact on the quality of the award.

I am suggesting not only that the panel should discuss the evidence prior to the final submission of proofs, but that it should begin these discussions at the first break after the first piece of evidence is presented at the hearing, and continue thereafter until the final decision and award is issued.

Before the hearing begins, the arbitrators should agree among themselves to this procedure so that all panelists know the rules that are going to be followed. Even those who are uncomfortable with this approach may recognize that the panel needs to be able to discuss whatever will help them make the most educated and fair award. Early discussion of the evidence can facilitate this and result in a speedier award to boot!