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The authors note that in writing an arbitration decision, an arbitrator sorts and prioritizes the complexities of the parties’ stories and, most importantly, attempts to persuade the parties of the wisdom of the decision through clearly comprehensible rationale. The authors proffer three touchstones: accessible language; accountability to the parties; and transparent reasoning. To be avoided: …

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A discussion of the importance of careful decision-writing, pitfalls in decision-making, inadvertent harm that the arbitrator may cause to the parties and their relationship, and the disservice caused by going beyond the scope of the issue(s) presented.

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Poorly crafted arbitration awards invite judicial attack and frustrate the objective of finality. The authors assert that a competent final and binding award must 1) be enforceable and impervious to legal attack, 2) deter legal challenges (i.e., provide no legal “handle” for appeal) and 3) satisfy the losing party that they have had their “day …

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Arbitrator Elson suggests that the length of opinions be reduced by omitting reiteration of the CBA at length; omitting a full restatement of the parties’ positions but, instead, explaining their positions in the contentions portions of the decision; and giving only a cursory description of frivolous arguments. He also recommends dropping third-person references to “the …

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A critique of decision writing and the growing tendency of arbitrators to write overly-lengthy decisions, to overuse dicta, and to engage in “pseudo-intellectual posturing” and to give unsolicited and gratuitous statements.

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Observations on the Canadian experience and its focus on respecting the parties expectations and interest in stability and predictability, viewed as distinctive from the United States experience. Clarity and simplicity in writing is encouraged and use of new legal doctrines is discouraged.

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Examples of arbitrators’ practices that deviate from the parties’ expectations in the hearing and decision writing. Over familiarity with a party, expediting the procedure for personal convenience or to meet another commitment, independent fact-finding or seeking more evidence than is offered, failing to issue a timely award, and overwriting or making editorial comments are cited.

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The art of opinion writing

The attributes of a well-written arbitration decision are described.

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Decisional thinking: New York panel report

The decision-making process of arbitrators and judges is examined; differences in the forums and in their procedures are found to have an effect on decision-making. The comparisons are made in three contexts: pre-hearing, hearing, and post-hearing. Prehearing subjects include choice of forum, preparation and discovery, and prevalence of settlement. Hearing subjects include the formality of …

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A compilation and examination of what judges and arbitrators have learned about each other’s respective roles in the decision making process; particularly as the trier of fact in labor disputes. Distinctions are drawn between the functional differences of the role of the trial judge, arbitrator, and appellate judge.

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