I must admit that I was most excited to read about the surface structure and deep structure interactions (the “Ocean Test”), specifically how to use surface structure to get at the arbitrator’s deep structure. However, after reading, it seemed that the author employed the diagram and step-by-step methodology to explain mere intuition. Of course, I’m sure that advocates (and arbitrators) gain a highly developed, special intuition and operate with a subconscious awareness from years of observing and participating in arbitrations and litigation. It makes me wonder, though, if some people have a natural intuition that enables them, even early on in their careers, to really get through to an arbitration panel, or to compel a witness to open up and feel comfortable enough to elaborate on the underlying truth of an otherwise two-dimensional testimony (through the non-“leading” looping technique). Conversely, even with this spelled out methodology, I imagine that some would-be advocates exist who simply cannot learn those types of skills, or at least not well enough to function as successfully as a more intuitive individual.
The section on cultural differences between arbitrators really mystifies me. I don’t yet understand how an advocate can truly know what to expect from a foreign arbitrator or opponent, or how to ensure that our/my American ingrained adversarial style will not obscure the interaction in a negative way. As someone with only limited experience observing real life litigation (Law & Order does not count), I already have a bias against the typical TV-style attorney who takes on a larger than life role in the courtroom, trampling on the credibility of the opposing party and witnesses, and telling the jury how they ought to respond to the testimony and evidence. I’ve heard from litigators who also occasionally participate in large-scale arbitrations that the two are not actually very different; but after the reading I imagine a much more rational, approachable advocate in an arbitration contrasted sharply with the trial lawyers I’ve seen in action. In addition, I’m skeptical of the mock arbitration scenario in which an extremely similar mock arbitrator is selected to give the advocates an idea of how the actual arbitrator might rule. I would like to learn more about the selection process and what criteria or stereotypes are employed when determining suitable panelists for a mock arbitration.
I find the cultural difference aspect also extremely difficult to comprehend. Already, two people from a same country can be extremely different and have polar opposite views and beliefs. However, if you add to the equation the language barriers and the divergent perspectives about the law and the importance of certain rights / obligations (some might see them as fundamental while others believe them to be secondary / optional), it seems like an almost impossible situation.
ReplyDeleteYou are zeroing in on one of the great advocacy challenges in international arbitration that makes its so fun and rewarding.
ReplyDeleteBefore the reading, I had the same impression that you did, imagining advocates in an arbitration as having almost larger than life personalities, that is, trying to out-do its opponent in order to gain the jury/judge/arbitrator's vote. However, the reading has definitely been an eye-opener as to the subtleties that make a great arbitration advocate, including deferring power to the arbitrator.
ReplyDeleteI think that your comment regarding the authors explaining their intuitions in a methodological is a good description of it. I'm not good at science, but I did wonder alot about how the authors were arriving at their conclusions, especially since every individual is so different from another.
ReplyDelete