By Stephen A. Hilger, Esq.
This is Part 7 in a 20-part series of blogs dealing with issues of arbitration in the construction industry.
Choosing an arbitrator is considerably more art than science. People will tell you they want an arbitrator who is fair and who will listen to the case with an open mind. The reality is, litigants want an arbitrator who will most likely view the world the way they do and will attempt to choose an arbitrator who is a most likely candidate in this regard. To accomplish this, there are several ways to select an arbitrator.
Under the American Arbitration Association rules, the parties are sent a list of potential arbitrator candidates, usually either 10 or 15, and the parties confidentially prioritize the arbitrators in terms of most favorable, least favorable, and those they would strike for various reasons. The American Arbitration Association then takes those lists, in confidence, and figures out who are the most likely candidates based upon the selections by the parties. The American Arbitration Association then privately offers those potential arbitrators a seat on the panel. To do so, the arbitrators need to fill out certain forms which would demonstrate the unbiased nature of their decision-making ability. In other words, they need to disclose conflicts. If they accept the appointment, an arbitration panel is assembled. This is true whether there is a single arbitrator or a panel of three.
But, there are other ways to pick an arbitrator. In a private arbitration, the parties can pick whomever they like. They must agree on the arbitrator, but through private arbitrations, you get a lot more flexibility in choosing your arbitrator.
There is another method of arbitrator selection where one party picks an arbitrator, the other party picks another arbitrator, and those two arbitrators pick a third. In my view, this is not a favorable way of selecting arbitrators because you basically end up with two advocate arbitrators and one who has to make the decision.
My recommendation is that you take the candidates who are possible arbitrators and do some fairly intense research on the Internet to figure out what their experience levels are. The arbitrator’s experience level is probably my most important criteria in figuring out whether they will be a successful arbitrator candidate. The Internet search will also give you a window into how these arbitrators think based upon articles they have written, speeches they have made, political party affiliations, which organizations they belong to, and the like. In my view, I like to pick an arbitrator who is most qualified to deal with the specific issues of the specific case. That greatly reduces analytical errors and also reduces the arbitrator education time.
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