Different Kinds of Bias

Do “repeat players” in the arbitration arena fare better than their adversaries? Texas Lawyer reported on a case recently before the Fifth Circuit, regarding an allegation of bias in employment-related cases by the American Arbitration Association. The plaintiff in that case relies on an academic study published 3-years ago by Dr. Alexander Colvin which advanced the notion, among others, that because employers are “repeat players” in the arbitration arena, there is statistical evidence which proves that employers are more likely to prevail in a AAA arbitration than the employee, and employees do worse in arbitrations than they do in federal courts.

The “repeat player” phenomenon is a time-honored concern raised by opponents of arbitration. Is the neutrality of the service provider compromised by the desire to continue to be the “go to” service provider for a particular party?

In the case of AAA, I don’t think so. Although facts often prove me wrong (!), I have served as a panelist on dozens of AAA arbitrations over the years. I can’t remember a single instance in which a panelist in one of these arbitrations seemed the slightest bit affected by the “repeat player” syndrome. That’s just not how AAA functions. No one is appointed to a AAA panel thinking, “I want to be sure the repeat player wins so that AAA will continue to get their business”. I’m not saying there aren’t other biases that come into play sometimes, just not the one advanced by the study and the plaintiff in the recent Fifth Circuit case.

Sleepy Time?

Fifteen to twenty years ago, the mediation that lasted until midnight, and beyond, was not uncommon. My mediator colleagues and I would get together and astonish each other with tales of wee-hours of the morning negotiation.

I never thought that the “all-nighter” was a good idea. Without good reason (jury trial starting next week?), why expose your client and yourself to the vulnerabilities produced by pure weariness? We are not meant to think clearly at 3:00 am. Fortunately, this practice seems to have faded. I think in the last ten years I have only had three mediations go past midnight, and one of them lasted until 4:00 am. That they were all in the span of thirty days in February of 2012 is something I will never understand!