Editor’s note: This article describes a hypothetical situation.
Although Bob has messed up in all kinds of ways in ADR, he remains a steadfast supporter of ADR. It provides a quick, efficient and informal means of private dispute resolution. This is perfect for Bob’s clients, who do not have large litigation budgets. As Bob always tells his clients, parties can adapt ADR proceedings to their needs.
Take arbitration awards for example. An arbitration award must be in writing to comply with applicable law. However, it need not contain the reasons supporting the award. In fact, many arbitrators typically do not set forth any basis for their award. Of course, that does not mean that parties should accept “bare” awards.
Bob — an astute observer of behavior and personality — knows from experience that an arbitrator who must render a “reasoned” award probably will be more likely to base the award on the evidence. Plus, providing the basis for the award will enable the parties to better understand the award and lead to increased faith and trust in the arbitration process. By contrast, a conclusory award could undermine the credibility of the arbitrator; the losing party may conclude that the arbitrator ignored the loser’s evidence, arguments and other presentations.
As Bob also knows, the arbitrator must spend more time to draft a reasoned award. As a result, a reasoned award will delay the final determination of the matter and increase the fees of the arbitrator. On balance, however, Bob likes reasoned awards.
In his most recent arbitration, Bob went one step further. Demonstrating his keen ability to customize the process, Bob prevailed on his adversary to include in the arbitration agreement a requirement that the arbitrator provide findings of fact and conclusions of law.
Several months later, Bob received the arbitration award, which stated crisply and unambiguously: “The claimant [Bob's adversary] has not met its burden of proof on its breach of contract claim. I therefore make my award in favor of [Bob's client].” The rest was silence. No findings. No conclusions.
“A win on everything,” Bob happily told his client. Even better was the arbitrator’s failure to detail the reasons for the award. As Bob chortled: “No explanation means a court cannot determine the facts that the arbitrator decided. It will be impossible for the other side to blow out our award — if the other side is stupid enough to waste their time and money.”
A couple of weeks later, Bob received a petition to vacate the arbitration award. The basis of the petition was not that the arbitrator made an “incorrect” award. After all, a court will not vacate an arbitration award because the arbitrator made mistakes of fact or law. The basis of the petition instead was that the arbitrator did not do what he was supposed to do — provide findings of facts and conclusions of law.
After reading the petition, Bob knew he was in for a long fight and that he could not achieve his goal of a quick, efficient and informal means of private dispute resolution. It would be months, if not years, before this dispute was over.
Did Bob do something wrong here? What could he have done differently?
Courts have considered attacks on arbitration awards where the losing party complained that the arbitrator did not provide an explanation in accordance with the parties’ arbitration agreement. Perhaps splitting hairs, courts carefully have distinguished between (a) agreements that say only that the arbitrator should “explain” the basis for the award; and (b) agreements that say that the arbitrator should, as in Bob’s case, provide “findings of fact and conclusions of law.”
For instance, a federal district court, in an appeal from an employment discrimination arbitration award, vacated an arbitration award, saying the arbitrator exceeded his authority by not explaining his decision, as the parties had required in writing. The award stated only that the “plaintiff has not met his burden of proof.” However, the 6th U.S. Circuit Court of Appeals in Green v. Ameritech Corp. reversed. Yes, the arbitrator’s award was “brief and conclusory.” But there was an explanation: The award said that the claimant “had not met his burden of proving that the decision was discriminatory or retaliatory.” Some explanation!
The 6th Circuit instructed drafters of arbitration agreements to use more precise legal terms to ensure an award in accordance with their needs and desires: “If parties to an arbitration agreement wish a more detailed arbitral opinion, they should clearly state in the agreement the degree of specificity required. In addition, the use of familiar legal terms would serve to ensure that reviewing courts have a standard to guide their analysis.”
As the court approvingly said: “‘Findings of fact’ and ‘conclusions of law’ are familiar terms in legal parlance with reasonably plain meanings.”
But isn’t that what Bob did here? He insisted on findings of fact and conclusions of law. He eschewed the use of the vague term “explain.” (Imagine the same court confronting an objection at trial to the following question: “Explain why you searched the house for contraband.”)
What did Bob get after he followed the 6th Circuit’s admonition? An arbitrator who did not follow the rules. This, then, is where Bob got off track.
After the parties customize their ADR process to satisfy every contingency and every need, they need an arbitrator who will adhere to the agreed-upon process. So the lesson learned may not be in drafting. After all, Bob followed the 6th Circuit’s instruction perfectly.
Instead, the lesson is that Bob had better spend more time in the future determining whether he is entering into the arbitration process with an arbitrator who can be trusted to do what the parties tell the arbitrator to do and to act consistently with the terms of the submission. No more and, as Bob learned, no less.