Originally from Behind the Scenes in International Arbitration

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CHAPTER FIVE -- THE DYNAMICS OF DELIBERATION

I. INTRODUCTION: DELIBERATION MEETINGS AND NEGOTIATING TECHNIQUES

In every arbitration involving more than a sole arbitrator, the critical moment is the deliberation.1 

The deliberation is normally held after the parties have exchanged their final memorials and the proceedings have been closed. It is the time when the arbitrators exchange their opinions, and arrive at an agreement on the terms of the award to be drafted. It is also the point at which irreconcilable differences among the arbitrators become apparent, which can then lead one of the coarbitrators to append a dissenting opinion to the award. I know of two instances where both co-arbitrators reached agreement against the Chairperson, who himself wrote a dissenting opinion, but cases like that are highly exceptional.

In an ideal world, the deliberation is the phase of greatest cooperation among the three arbitrators, with all of them working together in harmony as a team, with the aim of achieving the best possible decision and doing justice to the parties. When that happens, as it sometimes does, deliberations can be a pleasant and gratifying experience for the arbitrators.

However, if we leave behind the ideal world and focus on the real one, we discover that things are often rather different.

The dynamics underlying a deliberation are extremely interesting in practice. Arbitrators need to possess negotiating skills, because, often, it is actually a negotiation. I am not referring here to negotiation in the pejorative sense of “horse trading”, but in the more noble sense of the term, in other words that of a quest for a unanimously acceptable solution that does the greatest possible measure of justice to the parties.