by Gary Benton
What makes a great Arbitrator? It’s the key question parties and their counsel face in every case when selecting an Arbitrator. Making the right decision can win or lose a case.
The fact is there is no single Arbitrator who is right for every case, although there are some who are always wrong. Every Arbitrator has his or her own expertise, skill sets and capabilities, and every case is different. Yet, there are five key characteristics that make for a great Arbitrator in business and IP disputes. Here are the 5 C’s as I see them:
“Be thankful for problems. If they were less difficult, someone with less ability might have your job.” – Jim Lovell, Apollo 13
A great Arbitrator understands the subject and takes on the problems. An Arbitrator handling a business dispute should understand business and the way it works. This requires industry sector expertise as well as a solid grasp of the law applicable to the field. On a personal level, it requires enjoying helping people, being a good listener, having the intellectual capacity to process what is being heard, asking appropriate questions, and having a sound grounding in the real world to reasonably apply the facts and law to the circumstances at hand. Finally, competence includes being able to manage the arbitration, not just conducting hearings but offering a process that is cost-efficient and provides the parties and their counsel the benefits they desire.
“Real integrity is doing the right thing, knowing that nobody’s going to know whether you did it or not.” – Oprah
It goes without saying that Arbitrators must act with the utmost integrity; cases must be decided fairly, neutrally, independently and without any conflict of interests. Character also involves appreciating integrity: valuing trust, honesty and the goodwill of others. It includes honoring individuals for their ideals, giving credit to parties for their efforts and respecting counsel for their professionalism. Character includes being candid throughout the process and, when it comes time to making a decision, doing what is right.
“I learned that courage was not the absence of fear, but the triumph over it.” – Nelson Mandela
Arbitrators don’t need the courage required of military leaders or international statesmen but they do need to be willing to make tough decisions and lead others in new directions. Business Arbitrators may take on cases involving entrepreneurs, investors, patent holders, foreign licensees, distributors or corporate acquirers. In each case, a great Arbitrator is guided by the law, not by passions and prejudices, and holds the parties accountable to agreed terms and performance that is reasonable and in good faith.
“Be a yardstick of quality. Some people aren’t used to an environment where excellence is expected.” – Steve Jobs
A great Arbitrator has a passion for arbitration; an appreciation for an alternative dispute resolution process that is private, business-focused, consensual, fair and global in reach. Great Arbitrators do not act like a Judge or a jury; they press for efficiency and think smart and outside the box. They work with counsel to develop a process that suits the parties. They work hard to thoroughly understand and thoughtfully resolve the dispute. To do so they must listen carefully, interact, focus on the key issues and then provide decisions that are reasoned, just and practical.
“Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.” – Winston Churchill
Finally, a great Arbitrator must have an appreciation for the parties and the values they hold. Beyond the financial matters involved, there is a personal side to every business dispute. Each case involves people, their passions, ethics and pride. Being a great Arbitrator requires empathy with people, trying to appreciate what motivates them, how they feel and what they want. Arbitrators should respect differing values and cultures as business arbitrations often involve parties from different backgrounds or countries. Being a great Arbitrator requires listening to others and taking their views into account.
Competence, character, courage, commitment, compassion. A great Arbitrator recognizes there is much more to the arbitration than the Arbitrator. A great arbitrator focuses on the parties and works hard to provide a process that satisfies the needs of the parties and their counsel and a result that is thoughtful, correct, fair and just.
* Acknowledgments to the Ritz-Carlton Leadership Center: The 5 C’s of Leadership.