As published in The Chicago Daily Law Bulletin
17th-century jurist John Selden noted that a “foot” used to be the length of the then chancellor's foot. The length of people’s feet varies, obviously, so as chancellors came and went, the length of a foot varied also. Subjectivity made expectations impossible. Building contractors probably went crazy.
17th-century jurist John Selden noted that a “foot” used to be the length of the then chancellor's foot. The length of people’s feet varies, obviously, so as chancellors came and went, the length of a foot varied also. Subjectivity made expectations impossible. Building contractors probably went crazy.
Subjectivity is still a problem for judges because the law requires interpretation. Frankly, even coming from a family of lawyers, I was astonished when I got to law school and found out that the rules were so unclear in so many areas. They have to be. Human beings and their interactions are so varied and complex that in many situations the law can only say, act “reasonably” and set up processes, bench or jury trials, to figure out what the heck “reasonably” means in any particular situation.
In mediation, we talk about case value. Each side brings its theories, evidence, and arguments about case merits to persuade the mediator and ultimately the opposing side that their assessment of value is more accurate than their opponent’s. “Accurate” means, “likely to be the result if the case does not settle.” It brings to mind Oliver Wendell Holmes's famous remark (and I’m paraphrasing mightily) that law is nothing but a guess about what some judge or jury would do.
If the case is not settled at mediation, it is probably going to be presented to a judge or jury for a decision. Knowing as much as possible about that judge or jury is factored into case value. For example, it is common knowledge that a personal injury case going to trial before a jury in DuPage County, outside Chicago, is not likely to have the same value as a case going to trial before a jury in Cook County, which includes Chicago. Experienced mediators know there are many intangible factors which affect a jury's decision, and work with the lawyers to figure out how those factors affect case value.
In mediations we are trying to predict what a judge or jury would do with the case if it doesn't settle. That's our standard. That's what we are all looking at in trying to decide case value. It's often hard to predict. We're wrong at times. But our unspoken agreement is that our theories will be based on this common understanding of case value—and not just on the subjective feelings of a particular mediator on a particular day.
Subjectivity is an even bigger problem for arbitrators because the law of arbitration is even more unclear for us. Arbitrators must follow the contract—but many contracts aren't very specific. Statutes broadly leave the bases for decision to the arbitrators. What rules of evidence apply? What sorts of objections and motions can we hear? And, most important, what standards should we use for deciding factual issues?
Some arbitrators write, “I didn't find the witness to be credible.” In other words, they see credibility as purely subjective and subject to whatever criteria that particular arbitrator may feel key to credibility. Maybe one arbitrator thinks it's all about eye contact. Maybe another arbitrator thinks it's about hesitation in answering. Maybe dress is important or body markings or unusual hair styles. Maybe certain occupations are thought to involve more credibility. Or maybe it just varies from case to case depending on that arbitrator's recent experiences or how he or she happens to feel that day.
When there are no standards and every arbitrator rules however he or she feels, this display of subjectivity makes it very difficult for lawyers to have their expectations met. In a bench trial, the decision is public and reviewable. But in an arbitration, the decision is generally final, especially on a matter like credibility.
So which statement better meets lawyers' expectations in an arbitration? “I” don't find this witness to be credible, or “a jury” or “an ordinary reasonable person” would not find this witness to be credible? The question is, are we back to the chancellor's foot?
Personally, I like red ties. Is it fair to the lawyers and parties if I base my findings on what I subjectively happen to like? Is that what they are buying when they choose an arbitrator, the subjective and probably unknown biases and whims of a particular arbitrator on a particular day?
Or, when lawyers enter into a hearing, are they expecting the arbitrator to rule with an eye on some benchmark that goes beyond the particular feelings of that arbitrator on that day? I think most arbitrators would say there has to be more than what they may personally feel. That is the job of being a judge and ostensibly holds as well for an arbitrator.
Sometimes the jerk is right. Being impartial means not always following your feelings. Sometimes you have to rule against everything you feel, even feel deeply, because the law or the facts require it. Sometimes Snidely Whiplash wins and pretty Nell Fenwick is going to get run over by the train. For many arbitrators, credibility is about how a jury or an ordinary reasonable person would probably see it, as well as can be estimated. That means ignoring some traits that we may personally find distracting and looking at others that we personally might find less important. A jury is composed of twelve diverse people and provides more than the subjective biases of any one person. The ordinary reasonable person standard gives us something to think of beyond or own feelings.
By no means should arbitrators ever decide contrary to their own beliefs on matters of law or fact merely because they think someone else might rule otherwise. But we should try our best to give our parties as much consistency and predictability as possible. They need that in order to resolve the many more cases that are not tried or arbitrated.
There’s no complete escape from the subjectivity of decision-making. But the more that arbitrators can let parties know about the way they decide, the better the lawyers' expectations can be met. Focusing on a common benchmark, such as how the trier of fact or how an ordinary reasonable person is seen likely to react, at least puts everyone closer to the same page. And I don't think anyone wants to know anything about our feet.
In mediation, we talk about case value. Each side brings its theories, evidence, and arguments about case merits to persuade the mediator and ultimately the opposing side that their assessment of value is more accurate than their opponent’s. “Accurate” means, “likely to be the result if the case does not settle.” It brings to mind Oliver Wendell Holmes's famous remark (and I’m paraphrasing mightily) that law is nothing but a guess about what some judge or jury would do.
If the case is not settled at mediation, it is probably going to be presented to a judge or jury for a decision. Knowing as much as possible about that judge or jury is factored into case value. For example, it is common knowledge that a personal injury case going to trial before a jury in DuPage County, outside Chicago, is not likely to have the same value as a case going to trial before a jury in Cook County, which includes Chicago. Experienced mediators know there are many intangible factors which affect a jury's decision, and work with the lawyers to figure out how those factors affect case value.
In mediations we are trying to predict what a judge or jury would do with the case if it doesn't settle. That's our standard. That's what we are all looking at in trying to decide case value. It's often hard to predict. We're wrong at times. But our unspoken agreement is that our theories will be based on this common understanding of case value—and not just on the subjective feelings of a particular mediator on a particular day.
Subjectivity is an even bigger problem for arbitrators because the law of arbitration is even more unclear for us. Arbitrators must follow the contract—but many contracts aren't very specific. Statutes broadly leave the bases for decision to the arbitrators. What rules of evidence apply? What sorts of objections and motions can we hear? And, most important, what standards should we use for deciding factual issues?
Some arbitrators write, “I didn't find the witness to be credible.” In other words, they see credibility as purely subjective and subject to whatever criteria that particular arbitrator may feel key to credibility. Maybe one arbitrator thinks it's all about eye contact. Maybe another arbitrator thinks it's about hesitation in answering. Maybe dress is important or body markings or unusual hair styles. Maybe certain occupations are thought to involve more credibility. Or maybe it just varies from case to case depending on that arbitrator's recent experiences or how he or she happens to feel that day.
When there are no standards and every arbitrator rules however he or she feels, this display of subjectivity makes it very difficult for lawyers to have their expectations met. In a bench trial, the decision is public and reviewable. But in an arbitration, the decision is generally final, especially on a matter like credibility.
So which statement better meets lawyers' expectations in an arbitration? “I” don't find this witness to be credible, or “a jury” or “an ordinary reasonable person” would not find this witness to be credible? The question is, are we back to the chancellor's foot?
Personally, I like red ties. Is it fair to the lawyers and parties if I base my findings on what I subjectively happen to like? Is that what they are buying when they choose an arbitrator, the subjective and probably unknown biases and whims of a particular arbitrator on a particular day?
Or, when lawyers enter into a hearing, are they expecting the arbitrator to rule with an eye on some benchmark that goes beyond the particular feelings of that arbitrator on that day? I think most arbitrators would say there has to be more than what they may personally feel. That is the job of being a judge and ostensibly holds as well for an arbitrator.
Sometimes the jerk is right. Being impartial means not always following your feelings. Sometimes you have to rule against everything you feel, even feel deeply, because the law or the facts require it. Sometimes Snidely Whiplash wins and pretty Nell Fenwick is going to get run over by the train. For many arbitrators, credibility is about how a jury or an ordinary reasonable person would probably see it, as well as can be estimated. That means ignoring some traits that we may personally find distracting and looking at others that we personally might find less important. A jury is composed of twelve diverse people and provides more than the subjective biases of any one person. The ordinary reasonable person standard gives us something to think of beyond or own feelings.
By no means should arbitrators ever decide contrary to their own beliefs on matters of law or fact merely because they think someone else might rule otherwise. But we should try our best to give our parties as much consistency and predictability as possible. They need that in order to resolve the many more cases that are not tried or arbitrated.
There’s no complete escape from the subjectivity of decision-making. But the more that arbitrators can let parties know about the way they decide, the better the lawyers' expectations can be met. Focusing on a common benchmark, such as how the trier of fact or how an ordinary reasonable person is seen likely to react, at least puts everyone closer to the same page. And I don't think anyone wants to know anything about our feet.