Selecting an Arbitrator: What the Rules Don't Tell You

Most lawyers who have been through a formal arbitration process are familiar with the mechanics of arbitrator selection: you receive a list of candidates from your arbitration provider, rank them in order of preference, exercise any strikes you have, and the provider appoints whoever remains. The process is efficient and reasonably fair. What it does not do is tell you who to actually choose. The strike list and ranking exercise rewards lawyers who have done their homework before the names arrive — who understand not just the procedural mechanics, but what they are actually looking for in a neutral for their particular dispute. That homework is more involved than it might appear, and it matters significantly to how the arbitration unfolds. Start With the Dispute, Not the Résumé The natural instinct when reviewing a list of arbitrator candidates is to focus on credentials: years of experience, subject matter background, professional affiliations, whether they have published in the field. These are relevant considerations. They are not, however, the most important ones. The most important question is whether the candidate's background and temperament fit the specific dispute you have. A construction defect case involving complex engineering issues calls for a different kind of arbitrator than a commercial contract dispute where the central question is one of contract interpretation. An arbitrator who is excellent at managing document-heavy discovery may be less effective in a case that turns on credibility determinations about witness testimony. Before you look at any candidate's credentials, spend some time with your own case. What are the one or two issues on which the arbitration will actually turn? What kind of hearing do you anticipate — document-heavy, witness-intensive, expert-driven, or some combination? Is the primary challenge legal, factual, or technical? The answers to those questions should drive your evaluation of candidates far more than a general sense of who is most distinguished. The Plaintiff-Defendant Distinction Is Real — and Overused There is a persistent assumption in arbitration practice that arbitrators can be neatly categorized as favorable to claimants or favorable to respondents based on their professional backgrounds. Former plaintiff's lawyers, the theory goes, tend to sympathize with claimants. Former defense lawyers tend to find for respondents. Retired judges are unpredictable. This framework contains a grain of truth and a great deal of oversimplification. Experienced arbitrators are aware of their backgrounds and often consciously work against the biases those backgrounds might create. More importantly, the plaintiff-defendant framing obscures what are often more significant variables: How does this arbitrator handle discovery disputes? How does she run hearings — formally or informally? Is he likely to be an active questioner or a passive listener? How quickly does she rule? These procedural and temperamental characteristics frequently matter more to the outcome of an arbitration than the arbitrator's career background. An arbitrator who manages discovery strictly may benefit or harm your case far more than her prosecutorial or defense background would predict. Do Your Research, Then Do More Most arbitration providers maintain profiles on their panelists, but those profiles are marketing documents. They tell you what the arbitrator wants you to know. For a significant matter, they are a starting point, not a finishing point. More useful sources include: lawyers who have appeared before the candidate in arbitration or, if the candidate is a retired judge, in court; published decisions where available; and, for former judges, the public record of their judicial opinions. Judicial opinions are particularly instructive — they reveal how the candidate thinks through hard questions, how thoroughly she explains her reasoning, and whether she tends toward formalism or a more contextual approach. If you have colleagues who have appeared before a candidate, call them. Ask specifically about procedural matters: How did the arbitrator handle disputed motions? Was the hearing well-organized? Did she stick to her schedule? Did he ask questions during witness examination, and if so, were they helpful or disorienting? These details rarely appear in any profile but often prove decisive in choosing among candidates who look equivalent on paper. The Panel Question In larger or more complex matters, the parties may have the option of proceeding with a three-arbitrator panel rather than a single neutral. The decision deserves careful thought. A panel provides some protection against the idiosyncratic reasoning of a single arbitrator and may be appropriate where the legal or technical issues are genuinely complex. It also significantly increases cost and tends to slow the process. For disputes under a certain size threshold — and that threshold is lower than most parties initially assume — a single, well-chosen arbitrator is almost always the better choice. If you do proceed with a panel, the selection dynamics change. Party-appointed arbitrators, in jurisdictions and rules sets that permit them, introduce strategic considerations that are beyond the scope of this article. The short version: the neutrality of party-appointed arbitrators varies widely, and the choice of the panel chair is typically the most consequential decision you will make. Arbitrator selection is one of the few genuinely strategic decisions available to counsel in an arbitration proceeding. The hearing format, the rules, and the substantive law are largely fixed. Who decides the case is not. That decision deserves more deliberate attention than it typically receives.