free from prejudice or preconceived conclusions

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

9 February 2022


If you are principled, clear-headed, with an independent sense of right and wrong, you are on the right path. You are in charge of your thought process; you can weigh the key issues; you listen to the comments of fellow Tribunal/Board members; you evaluate them in terms of relevance and applicability; you are free from calculation or self-interest or group pressure. You approach the decision-making process with an open mind. You are on the right path.

Life is not always so straightforward. Dispute resolvers can equivocate. Occasionally they look at their fellow decision-makers and lapse into the personal calculation. Maybe they feel a little superior and are insufficiently willing to give time to different views. Maybe ego is at work and they feel themselves to be first among equals. Maybe there have been differences, even clashes, in the past or – in a word – “history”. Dispute resolvers can become compromised and allow expediency and calculation to colour their decision-making process.

These are human failings. They happen. After all, in order to achieve in life, you need confidence but, unharnessed, it can veer towards pressure even bullying. This is where a clash can emerge between Board members who, in the course of deliberation, see the lines of difference more clearly delineated. Tensions rise. Exchanges become a little tense and the prime quality of reason is pushed to one side.

There are two options for the decision-maker – assertion or reason. The ultimate protection against poor quality exchanges between arbitrators is the reason. “On the one hand and on the other hand”. Each Finding that needs to be made is amenable to a reasoned process where arbitrators list the key issues, look at the arguments for and against, free from prejudice or pre-conceived conclusions and allow themselves to be persuaded by the “to and fro” of discussion. Open minds. Open discussion. No agendas.

Tomorrow in #194 I will view the process from the vantage point of the new arbitrator. How does he/she view their new responsibilities?



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