30 October 2006

Judging On the Merits

"What traits do you look for in an arbiter?" I said to a friend who has much experience in these matters.

I was curious because I wanted to know whether Young's example was accurate. An example taken from actual life, I figure, is revelatory only to the extent that it represents how we indeed act and decide. And, besides the example he gave, Young had nothing to support his claim that Aristotelian justice involved looking at a dispute from the perspective of "a community of free and equal human beings."

"Well, you know, the usual things," my friend replied, "independence, knowledge of the relevant law, experience, good judgment."

I noted to myself that my friend had used the word 'independence', not 'impartiality'. Philosophers favor the latter, but the former is the usual technical term in such matters, and it means that the arbiter's direct or indirect financial interests will not materially be advanced or set back, depending upon how he decides the case.

"What if someone said that a necessary trait of an arbiter was the ability to view the case 'from the point of view of a community of free and equal human beings'?" I asked. "Would you agree that an arbiter should be like that?"

"I wouldn't have any idea what that language meant", my friend replied.

I tried a different tack. "Suppose the contesting parties are not hostile but wish to settle things amicably, in a friendly spirit. Suppose that they were friends beforehand and wanted to reach an agreement that preserves their friendship."

"Well then you're talking about mediation, not arbitration," my friend said. "Arbitration is basically a cost-saving measure. The arbiter aims to reach a judgment similar to what a court would reach, but without the expense of a trial. The role of a mediator, on the other hand, is to get the parties to talk to each other, to listen to each other, and, through that kind of exchange, to arrive themselves, if possible, at some shared agreement that seems fair to each."

I then gave Young's example to him, and quoted Young's language about the parties agreeing in advance that each is responsible for the broken bicycle to the extent that each acted negligently. From my rudimentary knowledge of tort law, I then said, "That's a notion of proportionate liability, right? Would the parties typically agree before approaching an arbiter to use proportionate liability, or, alternatively, predominant liability, or is that decision one that the arbiter would typically be expected to make?"

"It all depends on the state," my friend said. "If the state uses proportionate liability, then so will the arbiter."

"I see," I said, "that's because an arbiter is simply a short-cut trial, so to speak, and so points of law remain the same."

"Yes, that's right," my friend said.

In short, I couldn't find anything in actual practice that supported Young's account of what arbitration is like.

Young based everything on the idea: the arbiter decides the case as if he didn't know the identities of the parties to the dispute. But that sort of device, to insure independence, is very commonly used, without its implying anything about "adopting the perspective of a community of free and equal persons". It's a non sequitur to think that it does.

To give one example: a cellist auditions for the Boston Symphony, and he or she is asked to play behind a curtain, so that the judgment about his or her abilities is more likely to be based solely "on the merits", on the actual character of the playing. It would be ludicrous to say that this is to listen to the cellist's playing "from the perspective of a community of free and equal human beings." To judge something on its merits is not to adopt such a perspective.