One of the many advantages of arbitration over litigation is that the parties to a dispute have the opportunity to choose the arbitrator or arbitrators who will decide their claims. The selection of an arbitrator is a critical decision point that necessarily occurs very early in the arbitral process. The stakes are high since an arbitrator’s award is very difficult — some say nearly impossible — to have vacated. Choosing an arbitrator who is well suited to your case requires careful consideration of many factors, several of which are set out below.
Once a candidate clears conflicts, a primary consideration is a potential arbitrator’s alternative dispute resolution — or ADR — experience. In this blogger’s opinion, ADR experience is more important than a candidate’s substantive knowledge of the law applicable to the dispute. Counsel can and will educate the arbitrator on applicable law in briefing and at hearings, but counsel does not have authority to issue ambitious scheduling orders, place firm limits on the breadth of disclosures, or prohibit needless motion practice — i.e., counsel cannot do the things that play the biggest role in maintaining arbitration as a meaningful alternative to litigation. A candidate’s ADR credentials include the number of arbitrations in which a candidate has served as counsel or arbitrator, involvement in the ADR bar, publications, and endorsement by top ADR administration agencies. Being a top-notch litigator does not necessarily mean that a candidate has the knowledge or skill to manage an arbitration towards an efficient resolution.
Another factor to examine is cost, and this is a two-pronged inquiry. Of course, there is the arbitrator’s hourly fee and billing structure. Arbitrator study and travel time can add up quickly to negate much of the cost savings one expects from arbitration. Arbitrator fees vary widely — it takes a conscientious consumer to find a skilled arbitrator for a reasonable price. Arbitrators practicing in secondary markets or at small- to medium-sized firms have lower overhead and are a good place to start the search for a well-priced candidate.
The other cost consideration is a potential arbitrator’s willingness to manage the arbitral process so as to reduce party expense and arrive at a fair resolution as quickly as possible. An arbitrator’s willingness to manage a case efficiently is a matter of style and is an admittedly difficult factor to assess by simply looking at a candidate’s curriculum vitae. One can get a sense of a candidate’s approach to case management from articles published in ADR journals and transcripts of roundtables and continuing education programs where the candidate has presented. Speaking with lawyers or parties who have used a candidate as an arbitrator is also a very valuable opportunity to learn about a candidate’s commitment — or lack thereof — to the “alternative” nature of arbitration.
Finally, parties can interview a potential arbitrator. Interviews can be most useful after the parties have narrowed down the list of candidate substantially. Parties can interview a candidate about case management style and career experience, but parties should not discuss case specifics in order to avoid future accusations of bias. Perhaps the most valuable piece of information one can learn from an interview is a potential candidate’s availability to handle the case. How many arbitrations is each candidate handling currently? Which candidates are acting as counsel in other matters? An arbitrator’s short-term scheduling constraints have a substantial impact on how quickly your dispute will be resolved, and care should be given to find a candidate whose schedule permits immediate consideration of the dispute if expediency is important to the parties.
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