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Dissenting Arbitrator

Wednesday, April 01, 2026 5:52 PM | Anonymous

Legal opinion | Purpose and process of getting one - Michalsons

If an arbitrator announces during deliberations that they are going to file a dissent, should they be included or excluded during the discussions about the framing and editing of the majority opinion?

What are your thoughts?

Comments

  • Thursday, April 02, 2026 11:43 AM | Ted Gropman
    Included. Being included in the discussions might alter the dissenter's views.
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    • Thursday, April 02, 2026 11:57 AM | Robert Kelly
      Agreed. Moreover, how can a dissenter frame a dissent without full knowledge of the majority view?
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    • Thursday, April 02, 2026 12:11 PM | Steve Yusem
      Included. Courts do not exclude dissenters. Including the dissenter in the deliberation process enables the majority and the dissenter to craft a more finely tuned award and dissent. Each can comment on the other's position and may even result in an unanimous award. Including the dissent also tends to educate the parties respecting a petition to vacate.
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    • Thursday, April 02, 2026 1:41 PM | Denise Presley
      Agreed. There's always a chance the majority or the dissenter might come to different conclusions during deliberations. The panel owes it the process to ensure that all points of view are presented.
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    • Thursday, April 02, 2026 1:53 PM | Thomas Levak
      Agree. There is no basis for exclusion until the other two state their final decisions.
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    • Friday, April 03, 2026 9:14 AM | Joseph McManus
      I agree with Mr. Kelly
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  • Thursday, April 02, 2026 11:58 AM | Judge Richard B. Klein (ret.j
    I find the situation very different than when I was an intermediate appelley court judge. Then a dissent could lead to an appeal or settlement. But arbitrations are final and hence different.
    I certainly agree that the dissenting arbitrator should express his/her reasons for dissent before the order is filed. He/she might be convinced or might convince one of the others.
    At the end, it is more complicated. I do not think a long dissent is appropriate. I think saying “arbitrator x notes his/her dissent”may be enough. Depending on the circumstances, Maye a brief sentence or two with the reason may be appropriate.
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  • Thursday, April 02, 2026 12:01 PM | John Lowe
    I think the likely dissenter should be included. "It ain't over until it is over." The likely dissenter may change their mind. Or they might change the mind of one of the others. I have seen both happen. Arbitration deliberations should be cooperative.
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  • Thursday, April 02, 2026 12:05 PM | Pat Guinan
    Included. A dissenter is not an adversary and should be fully included in all deliberations. Also, how the issues are framed impacts how the dissenter frames their dissent.
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  • Thursday, April 02, 2026 12:08 PM | Eric Wiechmann
    In most cases they should. Usually the dissent involves only one issue of law or fact. The dissentor has a right to express his input on remainder of the award. His/her input could even improve the award and lessen the scope or vitriol of the dissent.
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  • Thursday, April 02, 2026 12:11 PM | Judith Meyer
    The discussions of the majority might convince the dissenting arbitrator to abandon or modify her dissent. It is in the parties' interest to have a dissent as narrowly and precisely framed as possible. The three panelists are colleagues, not adversaries.
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  • Thursday, April 02, 2026 12:13 PM | Mike Gruber
    I agree that all members of the panel should participate together in all phases of the arbitration process. Not only could inclusion alter the thinking of the dissenter but the dissenter's thoughts and comments may alter the thinking of one or more of the other panel members. Two of the arbitrators should never work together to the exclusion of the third member of the panel.
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  • Thursday, April 02, 2026 12:20 PM | Anthony DiLeo
    Might take is that I would always invite the dissenting arbitrator to participate in every step of the process. They continue to be an arbitrator on the matter in full. Unless they decline, you never know to the very end if they're gonna change their mind, change your mind or some compromise will occur. Plus, this is much better for professional relationships to be included and not excluded. We learn things.

    I had one instance where I drafted a dissent just to be able to get my thoughts straight and clear in my own mind, showed it to the other panelists, they found it persuasive, and they reduced the award by about 70% consistent with my draft. In a very professional and collegial manner.
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  • Thursday, April 02, 2026 12:26 PM | Bryan H. Levy
    This is a fascinating question. As framed I suggest the dissenting arbitrator should be included in all discussions. He or she should also be provided all drafts so that the dissent can be tailored to the majority opinion. However, the majority should be free to draft its opinion free of input from the dissenter. In short, the Panel should follow the practices of appellate courts in sharing drafts.
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  • Thursday, April 02, 2026 12:36 PM | Anonymous
    That dissenting arbitrator must be included in the discussion of the majority opinion because that arbitrator needs to know and understand the majority opinion in order to write the dissenting opinion
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  • Thursday, April 02, 2026 12:37 PM | Rebecca A. Bowman, Esq., P.E.
    I have a little bit a concern about the arbitrator who announces a general intent to file a dissent during deliberations. Sound a little pouty and premature. That being said, I would stop the deliberations at that point and focus on the need to dissent: What precisely is the issue? Does the dissenting arbitrator agree with the developing outcome, but disagree with the rationale (or something like an allocation)? In that case, the ultimate findings may remain the same and there need be a dissent noted only on the particular sticking point (along with the dissenter's position). Does the dissenting arbitrator disagree about a non-material point, such that the point could be deleted altogether? Does the dissenting arbitrator believe that the majority arbitrators have interpreted a fact differently that might change the outcome? The key here is fully understanding the dissenting arbitrator's issue. Furthermore, there may be, for example, a settlement structure already in place about which the arbitrators know nothing, so identifying, narrowing, and explaining the sticking point may be key to implementation of the settlement structure. Once the panel has the sticking point identified, narrowed, and explained, deliberation can proceed on the larger case.
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  • Thursday, April 02, 2026 1:02 PM | Mike Lampert
    See CIArb Guideline on Drafting Arbitral Awards, Articles 3 & 4, https://www.ciarb.org/media/kgcch3v0/10-drafting-arbitral-awards-part-i-_-general-2021.pdf
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  • Thursday, April 02, 2026 1:36 PM | Steven Skulnik
    It would be highly unprofessional to exclude a colleague for the reasons expressed by others. I point out that, while I'm not aware of a successful challenge to an award on this basis in a US court, there are examples in other jurisdictions.

    In Case No 102/2017 (15 February 2017) (the "Puma Case"), for example, the Spanish Supreme Court upheld the decisions of the lower courts, which found two members of a three-member tribunal liable to the parties, because they knowingly excluded the third from key parts of the arbitral process, thereby breaching their duty of collegiality. In the underlying arbitration between Estudio 2000 and Puma, the presiding arbitrator and Estudio 2000's appointee knowingly issued an award without the participation or consent of Puma's appointee. After the award was set aside due to the arbitrators' breach of the principle of collegiality, Puma successfully claimed against the two arbitrators for recovery of the fees paid by Puma.
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  • Thursday, April 02, 2026 1:46 PM | Robert L. Arrington
    I agree with everyone else that the putative dissenter should not be excluded. All of the reasons given in the prior posts are valid. I suppose there could be extreme circumstances that could change this assessment, but I think they would be rare indeed.
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  • Thursday, April 02, 2026 2:52 PM | Ronald Monitz
    INCLUDED for the reasons discussed above
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  • Thursday, April 02, 2026 3:57 PM | Ana Stanic, E&A Law, UK
    Although I agree that they should be included in the deliberations, the question i have is to whether the dissenter should also be required to share his dissent with the majority and if so, at which point. I was the chair of an arbitration in which the dissenter's objective was clearly to help a party challenge the award. Therefore the dissenter's involvement in the deliberations was difficult to navigate as chair.
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    • Thursday, April 02, 2026 4:22 PM | Joan Secofsky
      I agree with everyone about including the potential dissenting arbitrator. It's not over until the fat lady sings, and unless the dissenter has some nefarious purpose, his/her inclusion might cause a change in plans.
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  • Thursday, April 02, 2026 5:11 PM | Gerald Baldwin
    Include them. They may become convinced that the majority is correct or they may convince the majority, or a member of it, that the former minority is correct.
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  • Thursday, April 02, 2026 6:32 PM | Edward Mullins
    I'm generally of the school that, unless its an investor-state case, there is no point in a dissent so definitely a dissenter should be included as it lessens the likelihood of a dissent.
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  • Thursday, April 02, 2026 9:32 PM | Peter Scott Caldwell (Hong Kong)
    I was surprised by the question and am relieved to find unanimity that a potentially dissenting arbitrator should not be excluded. I would question whether an award made by two arbitrators with one arbitrator excluded from the deliberations by these two arbitrators would be open to challenge.
    Most laws and institutional rules require the arbitration to be conducted in accordance with the procedure agreed by the parties. I would expect that many courts around the world would consider excluding one of the arbitrators from the deliberations was not in accordance with the tribunal's mandate and contrary to the agreement of the parties.
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  • Friday, April 03, 2026 3:08 PM | George Davidson
    While there are very strong reasons for inclusion as other commentators have noted, the members of the majority should be free to consult privately as to how the award should respond to points made by the dissent.
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  • Sunday, April 05, 2026 2:22 PM | Thomas Hanrahan
    I agree with all my colleagues who would include the would-be dissenter in discussions, for all the reasons noted. Primarily, hearing and weighing the dissenting view can only improve the majority's articulation of its reasoning (and might alter the scope or content of the dissent, as well).. The harder question is why write a dissent at all. It is one thing if the dissenter sees some fundamental error in the process (jurisdiction, , e.g.), but there is rarely anything to be served by explaining at length why "I'm right and they're wrong" on the facts or law.
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  • Sunday, April 05, 2026 2:45 PM | Stuart Riback
    The process of writing and editing the decision is part of the deliberations, or at least it should be. Deliberation is only finished when the final decision is issued. So of course the prospective dissenter should be included. Everyone's mind could change, either about the result or the rationale.
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