Truth and Efficiency: The Arbitrator's Predicament

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Book Chapter

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Mahnoush Arsanjani, Jacob Katz Cogan, Robert Sloane & Siegfried Wiessner






Like historians, arbitrators normally focus on things as they were, seeking the most reliable account of the controverted events giving rise to the claims. In deciding disputes accurately, arbitrators promote the type of promise-keeping that underpins the positive economic teamwork that marries public and private welfare.

Often underrated or misjudged, truth has dispatched more than one mind be-neath the intellectual storm waves of a giant analytic sea, and anyone venturing to explore its contours must do so with fear and trembling. Yet truth-seeking lies at the core of what arbitration is about and cannot long be avoided in any serious discussion of the subject.

Several levels of inquiry present themselves. A panoramic perspective from 6,000 meters (20,000 feet for American alpinists) might examine reality in an abstract way. With varying degrees of sincerity, thinkers since antiquity have asked, “What is truth?”

By contrast, lawyers in the litigation trenches consider ways that rival versions of truth infl uence the judges, juries and arbitrators who decide cases. Th is vista includes the art of advocacy and the tools customarily used to persuade decisionmakers that one view of the case has more merit than another. In the common law tradition, such communications implicate rules of evidence intended, albeit in part, to enhance the prospect of reaching a correct conclusion.

Finally, a view from the hilltop (somewhere between the trenches and the Alpine peaks) looks at how goals other than truth-seeking enter the equation. Examining documents and listening to witness testimony will cost time and money. At some point, the additional enlightenment to be gleaned from more information will be off set by the value of finality and economy. Th e present essay explores this last line of inquiry, looking at how the value of truth-seeking weighs in the balance against sensitivity to speed and economy in arbitration.

Accuracy in arbitration means something other than absolute truth as it might exist in the eyes of an omniscient God. In examining the competing views of reality proposed by each side, arbitrators aim to get as near as reasonably possible to a cor-rect picture of those disputed events, words, and legal norms that bear consequences for the litigants’ claims and defenses. Th ey recognize that some answers are better than others, even if perfection proves elusive.

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