Selecting Your Arbitrator
The selection of an arbitrator is an oft-overlooked step in the arbitration process. By carefully analyzing an arbitrator’s qualifications, you might find yourself with an unperceived advantage over your opponent.
The first step is identifying potential arbitrators. If you’re working with a stellar organization like the American Arbitration Association, you’ll find that your case administrator will take care of a lot of that legwork for you. If you and opposing counsel are handling the arbitration by yourselves, then you need to scan the landscape for potential candidates.
What makes a good candidate? Of course subject matter expertise is good, as is experience serving as arbitrator. But you should look beyond that. You should for intellectual curiosity. You should look for intelligence. You should look for someone who understands the applicable rules and will work towards a just and sound decision, not just some Solomon-like rube who decides things by splitting the difference and chalking it up to equity.
The next step? Investigate the heck out of the person. Does the resume line up with the facts? If the candidate said he was a partner at his firm for 20 years, is that right? Or did he fudge over the time he spent as an associate? Are his disclosures accurate? If you find they’re not, would you trust that person to serve ethically?
Don’t just send an email out in your firm, asking about the candidate. Google her, read her articles, check dockets to see if she’s been sued (or sued someone). If you can, talk to counsel who have had matters with her. This can be done easily by checking dockets for the courts local to her or by searching PACER. If the candidate was once a judge, reach out to attorneys who may have appeared before her in court.
The last step is to listen to your gut. Years ago, I had a 9-figure case where I was lead counsel for a concrete company. Through research, I learned one of the candidates was the son of a cement contractor. This person ended up serving as the chair of the panel. He got the issues. He understood it. While we ultimately ended up settling the case, shortly after the respondent’s case blew up on them, and no final award was issued, it was clear that this arbitrator understood the issues. Who knows if he would have ruled in our favor, but I know he understood. And, sometimes, that’s more than half the battle….
