Originally from Dispute Resolution Journal

In my salad years, ! could never understand why British gentlemen of the Upper Classes as portrayed in the movies of those times behaved as they did! In Darkest Africa, with predators lurking and slinking in the forest just outside of the clearing, they always sat down to dinner in front of a tent, dressed elegantly in formal clothes.

Gradually (as illumination comes to most of us arbitrators), I came to realize that the rules of behavior with which humans are inculcated are thoughtlessly carried by them into alien societies and institutions in which they are entirely inappropriate. It is not easy to shed the mores, customs, and rules that one was so carefully taught and ultimately mastered, even if they are incongruous in a different environment. Since Darwin, we have come to learn that natural selection and adaptation to changed circumstances do not occur overnight.

These anthropological and biological musings have some pertinence to arbitration. This article addresses the phenomenon of many advocates (and arbitrators as well) who conduct themselves in arbitration as though they were in a court of law—not only with respect to the conduct of the hearing, but in their conception of the precedential effects of prior arbitral decisions. It is to the appropriations of citations and the force and effect of such prior decisions that I address my observations below.