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Lack of Unanimity Among Arbitrators on the Dispositive Findings/Conclusions in Writing the Award

Thursday, July 10, 2025 6:04 PM | Anonymous
Three stick figures talking about things they don't understand, doubt, question, hatena, JPG


When a three-member tribunal agrees on some but not all issues, what are the possible approaches of the arbitrators writing the Award? What is preferable? How should the Award deal with a dissenting arbitrator? Should the dissenting arbitrator sign the Award but issue a short statement of what is not agreed to? Or, should the dissenting arbitrator not sign the Award and write a dissenting opinion? 

What are your thoughts?


Comments

  • Thursday, July 10, 2025 6:42 PM | Michael Orfield
    I am always amazed when the parties go the Panel route, perhaps just a contractual requirement. So, when it comes to the decision, hopefully final and binding, why would the parties want to pay me $1,000hr to write my disgruntled descent? The Chair writes an opinion after conferring with the Wings. One Wing disagrees. The other Wing signs it and 2 out of 3 decide the case. The End! While I appreciate the situation where the third Wing wishes to express her or himself in opposition, unless the decision is fraught with reversible error, there is simply no reason to charge the parties for the Lonewolf opinion.
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  • Thursday, July 10, 2025 6:42 PM | Jack Kiefner
    I believe that the dissenting arbitrator should write a short opinion/dissertation immediately after the majority identifies liability and relief, but above the signatures,as to what aspects of the award, including liability and/or damages,leads him/her
    to disagree. I then think that the award should contain language to
    Confirm that the majority opinion is the final result and the same should be clearly labeled as “DISSENT.“ I believe all three arbitrator should sign the award with the word DISSENTING: above the signature block for the dissenting arbitrator. I also believe that arbitrators should do their best to concur and work toward a unanimous award. If that just does not happen, then I would handle as above.
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  • Thursday, July 10, 2025 7:22 PM | Dean John Feerick
    Lots of experience - in a case 30 plus years ago which I chaired, with two very prominent party arbitrators there was disagreement by one on liability and another on damages, where I made a majority possible on both liability and damages. In another matter, years before or since the first matter, one of the other arbitratos thought there should be attorney fees but the other arbitrator and I did not. Such was reflected in the award. In another matter in which I was a party arbitrator, the chair wanted to allow a motion for summary judgment before the hearing.. The other party arbitrator and I did not.
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  • Thursday, July 10, 2025 7:29 PM | Jack Kiefner.
    As a postscript to my prior posting of this evening, I was not suggesting that a descending arbitrator should feel free to write an opinion again to what you would expect from an appellate court in a civil setting. Rather, I think he/she should be required to set forth whether the disagreement is as to liability and/or damages. I also think there should be a simple sentence or two in a rather generic fashion, such as “… The prevailing party did not meet its require required burden approve.“ As to damages, he should/she should be able to articulate, as an example, “… The testimony and the exhibits do not support the damages awarded because there should have been a set off applied…“. I know that parties and their attorneys would appreciate at least some hint as to why there was a dissent and it seems to me that this could be accomplished in a minimum amount of extra time
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  • Thursday, July 10, 2025 8:18 PM | John McArthur
    When there is a partial dissent, arbitrators could (1) simply recite that one of the panel dissents without identification and name the issues in dispute; (2) do that and name the dissenter; (3) have the dissenter make a separate statement without argument above or below the group signatures; or (4) write a reasoned dissent that explains why she or he disagrees with the majority. I have not dissented often, and done (4) only when I thought the losing viewpoint (the dissenting point) was inaccurately stated in the record, and might leave the losing party feeling the panel did not understand its position.

    Some other factors: A detailed dissent usually doesn't have much purpose, because presumably the losing party is aware of the weaknesses in the award. But if the majority opinion does not accurately describe the losing positions, a dissenting arbitrator may want to provide a brief explanation to assure the losing party that its position was heard (ironically, of course, this will weaken vacatur efforts). To me there is no inconsistency between disagreeing with the majority but nonetheless vouching for the integrity of the process. The majority can also vouch for the process by acknowledging the importance and thoroughness of deliberations fostered by the dissenter's position, and explaining why they nonetheless disagree.

    If a dissenting arbitrator feels that there has been evident partiality or arbitrator or party misconduct, that can raise difficult confidentiality issues on what to say if the conduct is not of record. That's perhaps worth a separate blog question.

    As chair I have sometimes encouraged arbitrators who disagreed in part to let the award simply say "two out of three arbitrators" find X, but I've wondered whether the losing party views the process as less legitimate.
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  • Thursday, July 10, 2025 8:46 PM | John Kimball
    The dissenting arbitrator should sign the award and it should note the dissent.The dissenting arbitrator should issue a separate opinion noting the reasons for dissenting. In my experience, it's common for the majority award to comment on the dissent.
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    • Friday, July 11, 2025 8:05 AM | Joe Catania
      I ask the rhetorical question that should always be posited: Why? What purpose does a detailed dissent serve? Does it serve the purposes of the dissenter. the parties, the process? I haven't yet heard of a compelling reason, especially one sufficient to overcome the downsides of doing so.
      This issue is on the Chair in my opinion. In the first instance, the dissenting wing should be encouraged by the Chair to sign on to the majority opinion. Consensus has its own virtue.
      With or without unanimity, it's the Chair's job to draft an opinion that demonstrates the effort the panel took to seriously consider the losing side's position but why it ultimately determined it was not persuasive. Doing so will address the notion that the parties are entitled to understand how their case fell short. At times this can be raw as when the majority of the panel must say that they were "not persuaded" (a nice way to say they didn't believe) a witness's testimony.
      Addressing the wing's concerns in the award satisfies the concern expressed by others here that the losing party is entitled to be informed why they did not prevail and should make it easier to garner the dissenting wing's support.
      The downside of issuing a separate dissent is that it can be a recipe for opposition to confirmation of the award, it increases the cost to the parties and, by identifying the particular wing who dissented, may even increase a party's frustration with the process. "She got it, why didn't the other two" I like the idea of the award recognizing that some of the issues were not determined unanimously, without identifying the dissenting arbitrator (arbitrators if multiple disagreements over more than one issue), and all of the panel signing the award. My two cents (worth more or less?; now that the penny is no more!)
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  • Thursday, July 10, 2025 9:45 PM | Robbie MacPherson
    An arbitrator who does not agree with a decision to award relief made by the other two panel members should think long and hard about why it is necessary to record the dissent by anything other than not signing the award ,or signing an award which simply says that arbitrator does not agree with the decision to award relief. I would suspect that in the overwhelming majority of arbitrations there is no compelling reason to go beyond just noting the dissent.
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  • Friday, July 11, 2025 6:32 AM | Anonymous
    The majority should sign without comment by dissenter.
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    • Friday, July 11, 2025 8:42 PM | Bob Huber
      Yes. There is no need, reason, or requirement for the dissenting arbitrator to sign the award or lay out any reasoning.
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  • Friday, July 11, 2025 8:49 AM | Steve Skulnik
    Often, the arbitrator in the minority agrees with much of the award but disagrees on an issue, claim, or defense. In that case, that arbitrator should sign the award, indicating that the arbitrator dissents in part as to such issue, claim, or defense. It shows that that the partially dissenting arbitrator remained engaged throughout. If, on the other hand, the arbitrator believes the award is in excess of the tribunal's authority, the dissenting arbitrator may want nothing to do with it and should say so in a separate, short opinion, which is not part of the award.
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  • Friday, July 11, 2025 9:11 AM | George Lobman
    In my 35 years history I have never had a panel with one objecting position! In truth these were always construction cases and the Arbitrators and attorneys Were all in step with the black and white facts!
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  • Friday, July 11, 2025 9:27 AM | Robert Alston, Esq
    I’d have dissenting Arbitrator sign a one liner on bottom of Majority’s Award indicating her dissent “ as to … in Majority’s above …finding”
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  • Friday, July 11, 2025 9:31 AM | Thomas
    The parties do not need yet another dispute. Three experienced arbitrators can, and In my mind must, come to a single conclusion. Discussions, compromise, and a single finding are I think required.
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  • Friday, July 11, 2025 9:33 AM | Geoffrey BH
    On a practical level, if the dissent does not affect the amount of the Award, i would express my disagreement in deliberation and, if the Award writer fails to mention it, hold my peace to preserve collegiality.

    If the dissent is minor, I would request the form: "a majority of us ,,," and "One arbitrator considers ..." P
    possibly drafting a paragraph for inclusion in the award,

    Only if the différence seemed extreme and the tribunal could not find a way to include the dissent, would I write a separate brief Memorandum of Dissent (not a Dissenting Award, please) and invite the Presiding Arbitrator (or the Institution, if any), to send it out with the Award.

    Keep the Memorandum short and do not allow it to become personal. Only if all else fails should it be issued directly. It may help an enforcing court,

    Collegiate Awards are best.
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    • Friday, July 11, 2025 9:39 AM | Geoffrey BH
      It may also protect the dissenter from arrest or assassination by the loser!
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  • Friday, July 11, 2025 9:50 AM | Leslie W. Langbein
    Over the years and through many tripartite panels, I've come up with the phrase "The consensus of the Panel...." to indicate to parties that a decision was not unanimous. The opinion might even indicate how a "panelist" felt without naming names. So far, this has been enough to avert a dissenting opinion.
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  • Friday, July 11, 2025 9:53 AM | Sheryl L. Axelrod
    I don't see the benefit to the process or the parties of an explanatory dissent. If anything, such a dissent could help the party who lost overturn the Award. It's best the dissenting arbitrator sign the award and simply indicate they dissent or if they don't dissent to the entire Award, that they dissent in part as to a particular identified issue, claim, or defense, without explaining why.
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  • Friday, July 11, 2025 10:43 AM | John Holsinger
    I agree that a long explanatory dissent should be avoided. I also agree with the various suggestions for how to deal with the situation. One suggestion could be something like this:
    Dissent
    One member of the panel, _______, joins this award but
    dissents from paragraphs 5, 6, 20 to 23. That panel member would decide ___________.
    That panel member recognizes, however, that, in view of the decision of the
    majority of the panel, a just and equitable award is necessary and, therefore, joins the majority
    and makes this award unanimous as to all other aspects of the award.

    Another example could be this:
    The members of the panel unanimously approve the analysis and decisions
    in this Final Award, except one panel member declines to endorse the decision to award
    _______ damages.
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  • Friday, July 11, 2025 11:46 AM | Alvin Zimmerman
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    I’m not excited either way and I’ve been in the majority with both options used by the dissenter. I think the majority should over try to convince the dissenter not to dissent including really trying to modify the majority version to accommodate the dissenter and leaving the majority ‘ s decision in place. I do get concerned if the dissent was party appointed and the dissenter’s party looses. We discuss how that looks.
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