Accentuate the Positive

Recently, the Washington Post published a story that referenced the concept of “negative memories.” The story noted that humans tend to notice the negative more than the positive and are more likely to remember negative experiences versus the positive. This story resonated with me, primarily because I have recently received reports or examples of public criticism of the arbitration process. For example, the Miami Dolphins National Football League (NFL) football team demanded claims by former coach Brian Flores be submitted to arbitration per contract. Flores objected and demanded that the NFL make sure the suit is not resolved “behind closed doors” where “the odds are stacked against him.” The U.S. House of Representatives passed the Forced Arbitration Injustice Act in congress to prohibit mandatory arbitration clauses in workplace or consumer disputes. So, what stands out? Negative comments on consumer or workplace arbitration seem to somehow be newsworthy or get shared while positive aspects of arbitration, consumer or commercial, somehow miss the spotlight. 

Growing up, my parents repeatedly advised me to “accentuate the positive” based on an old Bing Crosby song of the same name. The full lyrics include the following advice: “Accentuate the positive. Eliminate the negative. Latch on to the affirmative. Don’t mess with Mr. in-between.”

I am going to follow that advice and take this opportunity to accentuate the positive aspects of commercial arbitration. The speed of arbitration, the flexibility of the process, the reduced cost, the potential for private resolution and the finality of arbitration are all positive aspects of commercial arbitration. Objective research supports and establishes these advantages. In addition, the commercial arbitration process gives the participants direct input into selection of the decision maker and the decision maker’s qualifications. If you believe commercial arbitration is a good process (and I do), then commercial arbitrators owe it to the public, the profession, and ourselves to accentuate these positives wherever and whenever possible.

As President of the College of Commercial Arbitrators (CCA), I have met and personally dealt with dozens of commercial arbitrators from around the country. I have seen first-hand the commitment to excellence of commercial arbitrators in general and CCA fellows in particular. I have seen a consistent willingness to dedicate (and donate) enormous amounts of time and energy to improve the commercial arbitration process. The CCA developed and published written protocols on cost-effective arbitration over 10 years ago and published its first “Best Practices” guide over 10 years ago that is now in its fourth edition. CCA fellows just completed a survey of best practices for virtual hearings, spearheaded a detailed analysis of mixed mode methods of dispute resolution, and are working on diversity and public policy initiatives. These are the types of positive initiatives and work that people do not regularly hear about or share with others. I want to share this news and this message. I also want to encourage all participants in the arbitration process to do their research on arbitration and consider the positives in the process.