Nine out of ten people want an experienced arbitrator, and they're right

There is currently a backlash against arbitrators being, to use the dreaded phrase, “pale, male and stale”, with “stale” used pejoratively to denote an arbitrator who is past their prime.

Conferences are beginning to debate the need for greater age diversity in arbitrators, yet by pursuing this route too assiduously we risk losing sight of the benefit of experience. In international arbitrations age certainly does not equal experience, but experience does require a certain age.

In business, for many years, knowledge was considered relatively unimportant in decision-making. Someone with excellent general reasoning abilities could, it was thought, be parachuted in to management roles to apply their superior reasoning to the problems faced by the company. Tragically, this was not the case at Enron, which is probably the poster child for a company which did not value experience.

Leading researchers in artificial intelligence are in universal agreement that the most important ingredient in any expert system is knowledge. “Programmes that are rich in general interference methods…but poor in domain-specific knowledge can behave expertly on almost no tasks” (Bruce Buchanan, Randall Davis and Edward Feigenbaum, artificial intelligence researchers quoted by Matthew Syed in Bounce).

Expert knowledge cannot be taught, it has to be acquired over time. As Syed states “good decision-making is about compressing the informational load by decoding the meaning of patterns derived from experience”. Good decision making emerges through practice. The energy industry, with its particular challenges and nuances, is a field in which experience in deciding its disputes is arguably even more valuable. It’s not simply about not having to get your arbitrator up the learning curve in understanding the technical aspects of an energy dispute, it is more about the confidence that an experienced arbitrator can and will decode the evidence before them and discern patterns which lead to a better and fairer result. Almost every arbitration requires the interpretation of a contract and that is a transferable skill, but an arbitrator who has been steeped in industry disputes for a decade will bring an additional level of reasoning to the decision making process.

In a recent arbitration which I chaired, the ages of the tribunal spanned 40 years from youngest to oldest. One arbitrator had married their spouse 15 years before I was born. The unifying factor on the tribunal was that each tribunal member had twenty years of concentrated practice in arbitration and the energy industry. When that practice began varied dramatically depending on individual circumstances, but each arbitrator had experience and that experience led to good decision making. A further reason to retire the phrase “pale, male and stale” and look more critically at how we select decision makers to ensure that we are valuing the right characteristics in making our choice.