By: Linda L. Beyea, Vice President, AAA Construction Division
The ability of the parties to choose the decision-maker for their case is one of the most significant benefits of arbitration over litigation. Parties have the opportunity to opt for specific experience related to the subject matter of the dispute, such as industry or technical knowledge, or for broad experience handling similar types of cases, such as large, complex contract matters. Parties may prefer the same qualifications or completely different credentials. Regardless of the differences, all parties want and expect a fair, impartial arbitrator and process.
Arbitration offers parties the ability to come to a meeting of the minds regarding who makes the decision on their cases.
Start at the Beginning
Include arbitrator qualifications in the contract. When drafting the arbitration agreement, the parties have the best opportunity to ensure the arbitrator will have the expertise they want. The parties should clearly state the type of experience, professional credentials, or subject matter expertise desired. Having an arbitrator who has technical knowledge for a dispute that is highly technical in nature can save tremendous time and cost that otherwise would be spent educating the adjudicator.
If the parties cannot agree on the qualifications, they might agree to a panel of three arbitrators that together satisfies the parties’ preferences. For example, on a construction dispute, the parties might specify that two of the arbitrators will be construction attorneys and one will be an engineer. The administrator of the arbitration will provide a list of arbitrators that meet the requirements specified in the arbitration clause; however, if the parties are too specific in the requirements, it may significantly decrease the pool of arbitrators eligible for appointment.
Look for Experience
Choosing arbitrators who are trained and experienced managing arbitrations fairly and efficiently will make a huge difference in the facilitation of the case. Administrative organizations typically vet and train arbitrators and require them to abide by codes of ethics.
Additionally, in today’s climate of cybersecurity threats, selecting arbitrators who are familiar with cybersecurity best practices can help protect the process from potential unauthorized intrusion.
Diverse arbitrators and diverse panels bring perspective and experience that can enhance decision-making. Diversity is an important value for companies, law firms, and individuals, who want arbitrators that reflect them or their workforce. Choose an alternative dispute resolution (ADR) provider that offers arbitrators who are gender and ethnically diverse.
Tools and Resources
Once the arbitrator qualifications are identified, parties may utilize a number of tools to help them identify the most appropriate candidates.
Whenever possible, research information about the potential arbitrator online. Some ADR providers make their roster or specialized panels publicly viewable online.
Online videos may be available in which parties can see and hear potential arbitrators share their thoughts on a relevant topic. If the arbitrator has spoken at conferences or other events, there may be a video on YouTube.
Parties routinely will review profiles, biographies, and disclosures and can consult with colleagues who may be familiar with the arbitrator candidates. They also may have an occasion to prescreen the candidates prior to final arbitrator selection: in some cases, by agreement of the parties and the arbitrator candidate, they may be able to send written questions or interview an arbitrator orally.
Selecting the right arbitrator is one of the most critical steps in the arbitration process and is the result of the input of two or more participants. Parties benefit when they are reasonable and cooperate on the selection process. If not, they may end up losing one of arbitration’s biggest benefits – choice.
American Arbitration Association arbitrators are obligated to manage cases in a fair, speedy, and economic manner in accordance with the AAA’s rules and Codes of Ethics and must fulfill annual continuing-education requirements each year.
The AAA offers an online search tool called the Arbitrator Search Platform to parties on certain cases, which allows a party on an existing AAA case to search its roster based on the identified criteria. More than 500 of AAA’s panelists have recorded brief videos talking about their greatest area of expertise, methods for streamlining arbitration, their philosophy on discovery in arbitration, and their career outside of ADR. Links to videos appear on the arbitrators’ resumes and on the Arbitrator Search Platform.
The content of this webpage is not offered as legal advice or legal opinion and it should not be relied upon for any specific situation. This webpage is for informational purposes only. While the AAA-ICDR endeavors to keep the information updated and correct, AAA-ICDR makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, or reliability of the information contained on this webpage. AAA-ICDR is not responsible for any inaccuracies, errors or omissions, or for the results obtained from the use of this webpage or the content herein.