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Exploring the mindset of an arbitrator
The collective mentality of legal professionals is always similar in applying laws to facts. Advocates, professors, judges or arbitrators are all used to verifying the existence, the content and the relevance of rules and issues. Claims on solid grounds, precise fact finding, and convincing reasoning characterize the mentality of the legal profession. In short, legal professionals focus heavily on laws and facts while they are thinking, so that is the basis of legal mentality.
If something distinguishes arbitration from litigation and other dispute resolutions, could it be the outcome and methods of arbitrators’ mentality? Take a comparison to advocates’ mentality as an example. Advocates should of course advise in line with laws, respect the facts and uphold the integrity of justice. However, the advocates’ mentality is usually to fight for a bigger slice of pie or, in an adversarial situation, to fight for minimum losses and liability. It is the nature of advocacy.
Professors’ mentality is similar, but they are used to focusing more on theories in different cases. Professors compare different theories and rules, and then conclude an answer. As a result of different mentalities, advocates and professors may have different answers to matters and make different choices addressing the issues.
By contrast, the mentality of arbitrators, which the author thinks is more similar to the mentality of judges, focuses on resolving disputes for parties. They call for the same thing – a fair and justifiable binding outcome. Fairness and justice is particularly important to ensuring the prosperity of arbitration because the whole industry is built on the trust of parties – the trust for a fair and justifiable outcome. That should be a key aspect of the mentality of arbitrators.
What does the uniqueness of arbitrators’ mentality reflect in practice? First, approaches to fact finding and reasoning in a vague situation call for following mentality: When an arbitral tribunal faces different possibilities and contradicting facts, fairness and justice are the standards to determine the right approach.
Second, different applications of laws and rules call for the following mentality: The opinions of the essence of laws and rules may be different among different arbitrators. Fairness and justice are also the standard to tell right from wrong.
Third, the assessment of an award calls for the following mentality: Is it fair and justifiable? This is the most important question we can ask in evaluating the quality of arbitral awards, although we have many other indicators. Fairness and justice override other flaws in arbitral awards, such as the incompletion of the format, mistakes with wording, insufficient elaboration, etc. As long as an award is fair and justifiable, we can say it is acceptable.
The arbitration industry is rooted in this mentality. It is a key way to tell the good from the bad among arbitrators and institutional arbitration services. It is also a key way to measure the potential of the arbitration industry in future. So how does one support the arbitrators’ mentality? It depends on the arbitrator. The arbitration institution must encourage fairness and justice in its team of arbitrators. Arbitrators must ceaselessly pursue and firmly believe in fairness and justice.
However, a fair and justifiable arbitral award requires more than a fair-minded person. Insightful thinking and professional understanding play important roles in the arbitrator’s mentality. Legal professionalism, skill with hearings, a well established regime, and abundance in specialized expertise, arbitration practices, and even life experience help back up an insightful and professional mentality.
A fair-minded person may understand dispute matters insightfully and professionally only if he/she is equipped with legal proficiency, specialized expertise and abundant experience. That is, and must be, the uniqueness of arbitrators’ mentality, which distinguishes arbitrators from other legal professions. In that respect, we can say that our efforts to cultivate and uphold the arbitrators’ mentality guarantee the prosperity of Beijing Arbitration Commission/Beijing International Arbitration Centre in the long run.
Liang Huixing is the chairman of Beijing Arbitration Commission/Beijing International Arbitration Centre. BAC/BIAC’s case manager Terence Xu also contributed to the article