You Can’t Hurry Judge

Every now and again, a mainstream occurrence helps inform the general public about the world of dispute resolution. Often through the world of sports. Mediation has resolved a hockey lockout. Arbitration has resolved salary disputes between player and team. This summer, we encountered another one.

A trade that would return Kawhi Leonard to the Toronto Raptors has been delayed pending the outcome of an investigation surrounding an alleged salary cap circumvention. Fans frustrated by the delay have wondered why the ongoing investigation cannot be sped up. Some media have speculated that this was possible, though at the time of writing we continue to wait. Months have passed since the trade was initially announced, and the matter remains unresolved.

The circumstance offers an opportunity to explain that some aspects of what investigators, adjudicators, arbitrators and judges do cannot be rushed.

While I wholeheartedly agree with the famous Walt Disney statement that everyone needs deadlines, in the case of dispute resolution processes of this nature there is an additional consideration. The person responsible for the outcome is, by design, distanced from the interests of the parties. They have no stake in the outcome, which allows them to fulfill their neutral role. They need time to conduct the process and time to deliberate before reaching a conclusion.

Sure, there can be circumstances requiring prompt resolution; yet time sensitivity must be balanced with the integrity and independence of the process. Ultimately, it is the decision maker who drives the bus.

Tunnel Vision is not just the title of an underrated Lenny Kravitz song!

The notion of tunnel vision captures the heart of the concern surrounding an investigator being rushed. Time pressures can encourage mental shortcuts and heighten the risk of cognitive bias influencing the outcome. Tunnel vision is a natural human tendency that can emerge innocently rather than intentionally.[i] The legendary Diane Lee Martin noted that tunnel vision can compromise objectivity, a crucial element in the work of any investigator, adjudicator, arbitrator or judge. Although their functions differ, each requires sufficient time for an independent and properly considered process.

But how about those deadlines Walt Disney says everyone needs?

This is not to suggest that decision makers are immune to deadlines and related timing targets. Nor is it to suggest that those responsible for these dispute resolution processes cannot appreciate timing factors; urgent motions and the like often highlight the need for prompt resolution of issues. There are certain aspects of these processes that can be sped up when timing matters.

The key is to distinguish what can be rushed from what cannot. For example, an investigator may be able to schedule an interview on an urgent basis but cannot compress the time reasonably required to consider the evidence, weigh the relevant factors and reach a conclusion. Doing otherwise risks encouraging mental shortcuts that undermine fairness and increase the risk of unconscious bias.

For Raptors fans, this means waiting until the investigation is complete to see if the Klaw returns.

____________________

Note: Marc Bhalla is a basketball fan who has prior experience as an investigator in the banking and insurance sectors. He is an instructor at Osgoode Hall Law School’s Master of Laws in Dispute Resolution Program and the York University School of Continuing Studies’ Certificate in Dispute Resolution. The views expressed in this column are from Marc’s capacity as a teacher and supporter of aspiring and new dispute resolution practitioners.

[i] Page 37