Advocacy, Psychology and Tactical Issues in Arbitration

Advocacy, psychology and tactical issues in arbitrations are at least as different from what a trial lawyer is used to in judicial proceedings as a trial by jury is from a bench trial.

For example, one factor which must be to taken into account is that arbitrators' choices and performance may affect their personal interests, while this is much less, if ever, the case for a judge or a juror.

This often makes arbitrators acutely aware of the time constraints which apply to the pending dispute, as failure to render the award in due time may result in the loss of their expected fee.

In addition, arbitrators are more concerned with independent scrutiny of their work than the average continental judge is likely to be. While in Italy and in other European jurisdictions reversal by a higher court carries no stigma, it is no secret that the frequent voidance of the awards of, say, an International Chamber of Commerce arbitrator may adversely affect his or her chances of appointments to arbitrate further cases. Further, in many jurisdictions arbitrators enjoy no special protection from actions brought against them personally by a disgruntled party for professional negligence.

As far as ad hoc panel arbitrations are concerned, an additional pressure may be felt by party-appointed arbitrators, namely to "deliver". Some hypocrisy exists in this respect, but while each arbitrator is supposed to be as impartial as any other, the truth is that majority awards voted by the arbitrators appointed by the parties against the opinion of the president of the panel are indeed not a frequent occurrence in the experience of arbitration practitioners.

In fact, in ad hoc arbitrations the advocate's role often ends up being played by four different actors, that is, the party's counsel, the party itself (which is often called to play a more active role than it would in court), the party's expert(s), and... the panel member(s) that the party is entitled to elect. Be this as it may, arbitrators who often participate in proceedings in which the party who chose them... wins will generally be busier than their colleagues, however highly reputed they may be in other respects.

One consequence to be expected of these factors is that arbitrators are in principle more inclined than judges to exert whatever influence and authority they may have on the parties to make them settle their differences at any cost, including through the implicit threat of 'retaliation' against the party...