And how does one do that if one hasn't read the briefs? I certainly can't give you examples from arbitration cases I participated in, if there are any, since that would violate my duty of confidentiality to the parties. |
I can say, however, from many years experience as a lawyer and law professor, that the hiding-the-ball tactic to which I refer is a common behavior of judges (one need only compare appellate decisions with lower court decisions for examples of this). It is unlikely that arbitrators are more noble than judges.
The burden of proof is in any case on social scientists who make claims about correctness of judgments. I think that if you ask any common lawyer he or she will tell you that one could not make a reasonable judgment as to correctness of outcome in contentious matters of this type without a look at the parties' claims.
The three panelist issue cuts both ways; panels make compromises to get a unanimous decision. Sometimes the compromise is silence on a disputed question, which is seen as less bad than putting something offensive in the judgement. The decision instead goes off on some other issue that all the members can agree on. Since the decisions have no precedential value, this is in no way a bad thing, but again it makes outside review without the briefs a dubious proposition indeed.