The Preclusive Effect of Arbitration Awards

• Author: Stuart M. Widman
• Pages: 35-40

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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The Preclusive Effect

of Arbitration Awards

STUART M. WIDMAN

The author is with Widman Law Offices LLC, Chicago.

“That’s distinguishable!”

Fess up. The phrase is part of your lawyering DNA, right? It’s

certainly part of mine.

Reflexively, we litigators look for what law school taught us

to spot—meaningful distinctions between cases that otherwise

appear to negatively affect or control our own. Our minds im-

pulsively shift into search mode. We’re detectives on the trail

of some breakthrough clues. In almost a game, often with high

stakes, we pursue the missing key that unlocks the secret door.

And we feel a special wave of bliss when we succeed. Addicted,

we hunt for more, noting the thinnest slices of fact or law to es-

cape an unfavorable decision.

Through it all, we’re advocates, so when our position is re-

versed, we do the opposite. Armed with case law authority that

seems to positively affect or control, and confronted with an

argument that the case does not perfectly apply, we respond by

trying to distinguish away the purported distinctions. We seek to

embrace the favorable ruling by suppressing the argued distinc-

tions as meaningless slivers of difference.

This tussle over difference and commonality is especially

sharp when issues of res judicata or collateral estoppel arise,

forcing us to address the real impacts of a first decision on a

second case. It’s a heightened fight over the usual distinction

process. We confront the painful prospect that the loss is fixed

and its effect cannot be avoided. Phrases like “no second bite at

the apple” and “no do-over” signal that the distinction game is

playing out in a more costly realm.

Still, we do not give up. We search mightily for rationales to

keep the quest alive. We argue it’s not the same thing, that the

parties and issues in the second case are not close enough to

those in the first case to suffer the final closeout.

What about when that first dec ision came from an ar bit ra-

tion, rather than a public lawsu it? That’s an extra twist. Does

it give us another ang le? Arbitration awards are not court judg-

ments, we say. Doesn’t that remove us from the wrath of cla im

or issue preclus ion?

Is there a second bite when the first came through arbitration?

How do we assess the preclusive effect of arbitration awards?

Does it matter if the award was judicially confirmed?

Depending on what side you’re on, it might be good news or

bad news. As with litigated cases, both confirmed and uncon-

firmed arbitration awards sometimes can bar later claims and

issues under traditional preclusion tests.

Claim and issue preclusion from court judgments are firmly

established under the law. B&B Hardware, Inc. v. Hargis Indus.,

Inc., 135 S. Ct. 1293 (2015) (issue preclusion); United States v.

Tohono O’Odham Nation, 563 U.S. 307, 315 (2011) (claim preclu-

sion). Even though the labels changed long ago from res judicata