If you are thinking of buying a new pet, “cats or dogs?” may be a reasonable question to ask. But what if the answer is “cats in town, dogs in the countryside”? Is that a non-answer? Or does it express what you most needed to know? If that is a good answer for yourself when deciding what to do, how good is it a guide for someone else? Perhaps it depends why that person is asking. That depends of course on what that person wants to know. Is that the same as what that person thinks he or she wants to know?
Such questions are raised by the article by Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath, “Puppies or Kittens? How to Better Match Arbitrators to Party Expectations”. Without picking favourites, I’ll call the article “Puppies”. In summary, Puppies refers to dissatisfaction amongst arbitration users with arbitration. It suggests that this dissatisfaction results from the absence of reliable selection criteria that would enable parties to make a truly informed choice between available options. The article goes on to suggest that a key issue is the lack of sufficient available information about how a given arbitrator is likely to conduct a case. Its solution is stated to be:
“simple: that arbitrators themselves should state their soft skill preferences – or their lack of desire to state them – for very specific categories relevant to the conduct of proceedings”.
It presents a questionnaire, which it suggests should be completed by arbitrators and that this list could be made available on databases, whether individual or held by various arbitration organisations. The idea is that such a list would:
- Make the selection of arbitrators more transparent.
- Lead to greater party satisfaction because the party’s choice is more informed.
- “Counter the imperfect information flow” based on what are said to be assumptions made on the ground of nationality.
- Create more diversity and hence improve quality.
The article also suggests that if arbitrators disclose their preferences from the outset, “the legitimacy of the entire process” would increase.
The easy point to make about Puppies is that the list of questions in the proposed questionnaire is a useful checklist of the kinds of questions which parties might consider. However the solution, a published questionnaire, does raise some potential concerns.
Let’s consider two of the questions by way of example.
- “Costs: do you believe it is appropriate for a party to recover all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defences?” There is a multiple choice series of answers, running from “never” to “always”, but including both “it depends” and “sometimes”. Imagine arbitrator A answers “it depends” and arbitrator B answers “never”. The parties are to arbitrate under rules (institutional or statutory) which provide for costs to be awarded within the discretion of the tribunal (there may or may not be a default starting point). Arbitrator B’s answer is on the record. Has he or she already made his or her mind up? How impartial are they, now that they are on the record? Did Arbitrator A’s answer to that question really help? Did either arbitrator’s answer really make the process more “legitimate”?
- How would an arbitrator deal with “counsel misconduct”? No example is given of what type of misconduct is in mind. One available multiple choice answer is that counsel misconduct is not the responsibility of the tribunal. Another is that the misconduct should result in discipline “during the proceedings”. Isn’t the truest answer in all cases “well, it depends for a start on what misconduct you are talking about”?
This is not a point about the phrasing of given questions. It’s a wider point that many of the questions raise issues which involve judgment. In other words, the answer is best explored as a process: how the arbitrator would go about answering the problem. The questionnaire doesn’t allow for that to be articulated. Moreover, as touched on in the costs question above, some answers could, on their face, create potential allegations of bias that the arbitrator had long before made up his or her mind. One thinks of the instances of arbitrators who have written on a subject in the past. Does it help if every arbitrator can be the subject of a similar complaint in future? At this point, the puppy or kitten may be getting everyone into an unnecessary fight.
Finally, there is a danger in confusing desired outcomes. It isn’t easy to see how diversity will be obtained by the questionnaire process, unless one means a different type of diversity than the one most commonly understood by that term. The questionnaire may enable parties to build a tribunal which is more likely to conduct proceedings in a common or civil law style (one of the questions addresses this point) but, assuming that parties do use that as a basis for embracing diversity, it’s the diversity of legal approaches which is embraced there.
Footnotes can be important in the world of dispute resolution: apparently a whole branch of United States constitutional jurisprudence stems from what is known as “Footnote 4” (United States v Carolene Products Company). In the case of Puppies, Footnote 6 of the article is instructive:
“Obviously, once proceedings are underway, arbitrators and parties have the opportunity to confer about the conduct of the case, but this generally occurs in a formal context where parties and tribunal must react to positions being advanced and compromise, such as in negotiating a procedural timetable…”
That is a very good point, but isn’t it a point which remains, even if one does go down the questionnaire route? After all, however happy one is with the new puppy or kitten, doesn’t one want it, if not exactly house-trained, to at least have some sort of mutual understanding with the new family? That isn’t going to be avoided by asking questions before the family gets the chance to meet its new friend.