Chapter 16 – The Arbitrator Challenge

Once an arbitration is final and an award had been made to one party or the other, both parties typically have an opportunity to appeal the award or results. Our issue of course was more than just the ludicrous assertions of M. Rather, we then had to deal with the punitive behavior of arbitrator C since we dared to challenge his independence and further made claims that he was biased.

Our Table of Contents has been uploaded and is included herein. Motion to Dismiss Emails

The items covered in the Motion are all the things we are investigating in this blog, but lets dig a bit deeper in this post. As we have discussed before we challenged Mr. Crow’s ability to be unbiased based on his prior work history with Marshall, the fact that he had not disclosed it, the fact that she had underplayed it and my attorneys observation that the extent of the disclosure was insufficient.

My attorney Scott Cliff wrote “No. I have absolutely no recollection of her even mentioning having been in the same firm with Bill Crow.” The full content of that email is Exhibit 2.

And so we preserved the item for appeal by noting our concern in the brief.

Mr. C’s response is Exhibit 3 of the attached and note specifically that he is stepping down. Exhibit 4 then is Marshall’s response which basically asks him to reserve his decision until she briefs him on the matter and low and behold she has already done some research on this matter, anticipating our challenge.

And Mr. C then responds again this time suggesting that he will await a decision from the Arbitration Service of Portland to determine if he should step down. Now he already has stepped down, but consistent with other challenges by Marshall he now apparently has withdrawn that recusal. Of particular note though is his recommendation that Marshall bring to the ASP’s attention the other challenges of bias she claims I made in the past. In other words C has accepted Marshall’s representation that there have been other challenges. See this at Exhibit 5.

But now is the real epiphany. On Exhibit 6 you’ll see an email exchange between me and Marshall. Early east cost time I respond that I’ll need to check with counsel and within 17 minutes she responded to me and me alone. My email was sent to Bill Crow, Scott Cliff and Marshall. Her response to me was “And what counsel is he going to check with? This is my point.”Clearly she did not intent to send this to me, as she subsequently confirms. So who did she intend to send this to? Bill Crow? Sandra Ware? Whoever it was there was an ongoing to point to make and she questions that I would not seek the counsel of Scott Cliff, who was on the email string.

The consensus of the 4 people or so that reviewed this email from Marshall was that she intended to send it to arbitrator C. Because she was questioning to whom I would discuss this issue, after I had included Scott Cliff on the email string, it is unreasonable to conclude that it was Sandra Ware. The two likely candidates are Arbitrator C and James Damis (head of the Arbitration Service of Portland).

I outline much of this to James Damis in a letter, which is Exhibit 8. His answer is Exhibit 9, allowing C to proceed with the arbitration. The bias is clear. And the punishment for saying something about it about to be given out. Although we have an extraordinary case against M, stronger than I have ever seen, I am uncomfortable. I struggled with the question of whether to challenge Mr. C’s bias. But the email at exhibit 6 and the withholding of this information by Marshal and C made it necessary. If there was nothing to hide, why try to hide it.

I so wanted the process to have been pure and clean. I have a very deep need to believe in the Bill C’s of the world. When you find that you cannot, it forever eats at your soul. And I have not been at peace since. I don’t think I ever will be again. It’s all happening right before my eyes and measuring how the actors in place carry themselves, this acknowledged bias happens a lot. It’s common place.

And I am so disappointed. And if this award to M ( I mean Marshall since she gets most of it) is C’s punishment for pointing out the bias, then it simply reaffirms the conclusion I already reached. Even when an arbitrator or judge is challenged, they still should perform their duties with the honesty and integrity expected of them.

Challenging an arbitrator is a classic but risky chess move. It was necessary to preserve an appeal and was recommended by counsel. The dishonest and vain see it as an action worthy of punishment.

Read on.

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