The Importance of Disclosures

There has been some whispering in the ADR community about arbitrators (or mediators) attempting to corrupt the selection process. Personally, I can think of at least five incidents in 2022 alone (and we’re just now 75% of the way through the year) where I caught arbitrators either being really sloppy with their disclosures or outright fibbing about them.

Why would a neutral do this? In my opinion is a factor of one or two things: carelessness or greed.

There are — let’s be honest here — a lot of neutrals who have no business being a neutral. Or of being a neutral any longer, having ignored the signs that it was time to head out to pasture. When you examine their resume or disclosures, you’ll usually find a mistake or two … or three. If a neutral cannot take the time and care to make sure his/her resume or disclosures, then why should you expect that neutral to take the time and care to give your case appropriate treatment?

Worse yet, there are neutrals out there who are intentionally lying on their resumes in the hopes of landing big cases. Or failing to disclose everything they should, like having handled a previous case for one of the parties. I’m not talking about the overreaching and archaically stiff “I’m in the bar association and our paths may have crossed” or “I’m on LinkedIn and we may be connected” disclosures, I’m talking about the “I previously arbitrated a case for the Respondent before.” Of course, the negative interpretation of this is that the disclosure was not made in the hope the arbitrator will be hired for the case.

And what is one of the most common reasons for vacating a decision? The failure to disclose potential conflicts?

So what’s an attorney supposed to do? As Don Cripe states:

Head off the problem by researching and “shopping” for a reliable, qualified judge or arbitrator. Google the person, search the internet, ask questions of colleagues. Do everything that can be done to find a quality person to try or arbitrate your case. To be sure, it is unlikely that one will find any private judge or arbitrator who has not irritated someone in the past (after all, someone loses in 100% of tried cases). That is the bane of decision makers. So, consider the criticisms you find and sort out the “sour grapes” from justified criticism.