Yesterday, I promised to provide a little "pro" arbitration wisdom in response to my speaking partner's "con" since that's our ALFA Seminar topic here in beautiful Half Moon Bay.

And yet it's 4 a.m. before I realize I can't sleep because I've been mediating too long to seriously launch one side of any debate.  Everything and everyone has become so much more three-dimensional, multi-layered, and textured as a result of three full-time years of ADR practice.

So let me share the first of my non-scripted thoughts on the matter.   

I'm Unwilling to Prejudge the Court's, the Arbitrator's or the Jury's Biases.  

If you read yesterday's post, you'll recall that several of the anti-arbitration arguments were based upon the presumption that the arbitrator will more likely than not be biased in favor of the plaintiff because:  

1. Arbitrators have a vested interest in their case load persisting, whereas the courts are interested in purging their dockets, thus making early termination in court more likely than in arbitration.
2. Arbitrators' [presumed] self-interest in maintaining and expanding their own ADR practices encourages a "split the baby" mentality and reluctance to terminate the case short of a full hearing.
3. The "repeat" player bias will favor the Plaintiffs' bar who the arbitrator will see far more often than counsel for any particular employer.

Having spent  25+ years with attorneys, judges, mediators and arbitrators, I simply can't assume bias.  A few bad apples aside, the men and women of the legal profession are among the most ethically-minded of any professional or business people I have known -- by many, many, many degrees of magnitude. 

I'm not fooling myself.  We are all somewhat helplessly self-serving.  Nevertheless, I have seen attorneys, arbitrators and mediators make consistent and concerted efforts to minimize the effect their own pre-existing biases and interests on their professional practice day after day, month after month, year after year.    

As litigators, worrying about our decision makers' biases is our job.  That's what we do for a living.  I've never much believed in forum shopping.  I continue to place my trust in evidence and persuasive argumentation and the power of a coherent narrative of events that makes sense and does not contain the seeds of its own destruction at its core. 

So, to start, I'm unwilling to assume the arbitration forum is biased in favor of either plaintiff or the defendant until I see evidence of that bias.

"But What About the Statistics in Yesterday's Post," You Ask.  They Showed a Radical Difference Between Rates of Plaintiff and Defense Victories in Arbitration and Judicial Forums.

Well, yes.  But I've also spent considerable time with statisticians in the course of my practice and, you know what they say, "lies, damned lies and statistics."

Maybe the 68% plaintiff "win" rate in arbitration compared with 30-something percent at trial can't be ascribed to the bias of the forum.  Maybe it results from plaintiffs' lawyers arbitrating only those cases which they believe they can win.  After all, our Courts didn't shift the cost of arbitration forum fees to employers all that long ago.  If we're going to assume anything, why not assume that when Plaintiffs' attorneys are required to pay for the forum, they pursue to final award only those cases which are pretty much sure-fire winners? 

I don't, obviously, have the answer to this question -- the empirical evidence; the control groups; the stuff that makes a statistical analysis convincing.  But until I do I'm unwilling to make a causal and, to my mind, cynical, connection between plaintiff-victory rates and arbitrator bias.  

If anyone possesses answers to these questions or more complete statistical studies, I'd sure like to see them.

For now, it's late.  Or early.

Say good-night Gracie.

"Good night Gracie."