Whether young lawyers should serve as arbitrators- Stacking the deck of justice
Sarmad Sattar / May, 2022
Only a few decades ago, there was widespread belief that lawyers had no legitimate place in collective bargaining or arbitration. By training and experience, it was felt, they were conservative, enamored of formalism, wordy, devious, overly technical, and utterly unable to comprehend, let alone conform to, the overriding necessities of arbitration. This view was espoused by one of the towering public figures in labor relations, Sir William Leiserson. But as the incidence of arbitration increased, and as most attorneys who became involved seemed to adapt to the new medium, and this prejudice became less prevalent.
The International Institute for Conflict Prevention and Resolution (CPR), is a global non-profit organization that advances dispute prevention and resolution practices and provides high quality solutions , and more recently announced that its revised Rules for Non-Administered Arbitration of Domestic and International Disputes will contain a new “Young Lawyer” Rule to encourage and reinvigorate young lawyers.
The Young Lawyer Rule aims to increase opportunities for lawyers at a junior level to take a more active role in arbitration proceedings, for example, by examining the witnesses they helped to prepare and presenting arguments on the papers they have drafted. Several federal judges around the country have also adopted this rule, or have issued standing orders, toward the same end. CPR’s rule is discretionary and makes abundantly clear that, ultimately, the client and their counsel have the final say as to who represents the client at the hearing.
CPR’s “Young Lawyer” Rule is added to Rule 12, Evidence and Hearings, and reads:
“12.5 In order to support the development of the next generation of lawyers, the Tribunal, in its discretion, may encourage lead counsel to permit more junior lawyers with significantly less arbitration experience than lead counsel to examine witnesses at the hearing and present argument. The Tribunal, in its discretion, may permit experienced counsel to provide assistance or support, where appropriate, to a lawyer with significantly less experience during the examination of witnesses or argument. Notwithstanding the contents of this Rule 12.5, the ultimate decision of who speaks on behalf of the client in an arbitration is for the parties and their counsel, not the Tribunal.”
While the ‘Young Lawyer’ Rule applies to all young lawyers, judges who have implemented it have reported that it has indirectly but naturally increased the opportunities for women and people of color, who tend to be underrepresented at the partner level to play more diligent and substantive roles in the courtroom. This helps to create a culture where such critical opportunities are encouraged, and the mechanisms are put into place to enable all stakeholders to benefit from these opportunities without any hesitation or reservations.
All too often, in arbitrations, as in court, all of the speaking is done by senior lawyers – generally white males. In order to achieve the goals of diversity, junior attorneys, including women and people of color must be given an opportunity to take on speaking roles. At a personal level, I am very pleased that CPR has decide to adopt this ‘young lawyer’ rule and hope that it will encourage senior counsels and their respective clients to provide speaking opportunities to younger lawyers to hone their oratory skills.
Usually, the lawyer’s experience often determines his or her professional judgment in the case. Arbitrators of different backgrounds usually have their own unique mindset in case judgment. A lawyer needs a lot of judicial practice to think about and make a judgment call, in order to get acquainted with and understand the arbitrator’s reasoning and logic in arbitrating a case. A complex dispute usually contains several different controversial points. Lawyers with professional capabilities and ample experience can resolve such controversial points by quickly making judgments, rationally analysing alternative solutions, and using discreet comparisons to choose the best solutions for the contesting parties.
An arbitration tribunal composed of arbitrators familiar with professional knowledge can more quickly and accurately grasp the focus of the dispute and propose the best solution. If the parties choose an arbitrator who is unfamiliar with the professional knowledge, even if the arbitrator is quite responsible, it is often difficult for him or her to be competent for the job due to the lack of professional legal acumen. Therefore, it is of pivotal importance for the parties to appoint experts in the concerned fields as their arbitrators. At a personal level, I am very pleased that CPR, a nonprofit organization has decided to adopt a ‘young lawyer’ rule, as an initiative, which has far-reaching implications, with a hope that it will encourage senior lawyers and their clients to provide opportunities to younger lawyers to set the tone right from the very beginning of their professional pathway.
Steering Committee Member, Young Arbitration Group
The writer is a lawyer based in Lahore.