- Henry David Thoreau
How to Find an Arbitrator
Updated April 2013
The systems by which arbitrators are made available vary widely from setting to setting, and strategies for finding an arbitrator vary accordingly. The main systems are:
1. The open market. In this system, a number of private practitioners compete for business, as in any other field. While arbitrators sometimes advertise independently in open-market publications, most do not, so panels and rosters (below) are relied on by most clients.
2. Government agency. In some settings, arbitrators are provided by government agencies or courts who employ them directly as civil servants.
3. Panels and rosters. Many courts and some government and private agencies maintain rosters of arbitrators whom they do not employ directly, and supply a short list (either random, or chosen to fit specified needs) upon request for a particular case.
4. "Custom built" panels. Some parties who deal with each other frequently create their own lists of acceptable arbitrators, and choose only from within that list for any given case.
The process for finding an arbitrator obviously varies according to which of these systems is in use. "Custom built" panels, however, represent a special circumstance, and one typically used only by "sophisticated" parties. More general panels and rosters are typically written into a contract in advance — sometimes, a "contract of adhesion" that gives one party much more of a role in the selection of the roster than the other party gets. But once the "short list" is received for a particular case, the process of identifying the best arbitrator for the case is similar to the "open market" situation.
Finding the right arbitrator for a major case, or one which involves specialized knowledge, may be a significant undertaking in which a law firm invests some resources. In commercial arbitration, there are many specialties; arbitrators who are known for being able to set a fair "ground rent" for the land under a major office building are unlikely to be the same people as those who would arbitrate a major intellectual property dispute. Thus, more than with other dispute resolution processes, arbitration tends to value in-depth experience and expertise with the subject matter of the particular case. Yet an increasing number of court systems refer certain classes of cases to arbitration routinely in order to free up court time and ensure speedy disposition of large numbers of cases. These are often cases in which relatively small amounts of money are at stake and in which no specific expertise in a particular industry is necessary. Often, the arbitrators serve as volunteers, and are not expected to invest large amounts of time in any given case. In some of these settings, the court has approved in advance a list of arbitrators, and assigns an arbitrator from this pool, unless a party can show some specific reason why that particular arbitrator should not be assigned. Thus there is not always a choice.
When there is a choice, a party or attorney needs to understand the qualifications of different arbitrators. But unless the case is a high-dollar or specialized case, the printed resumes may not tell the client much about the most important criteria: Is this arbitrator acute enough to understand what's really going on in the case? Is this arbitrator fair? Does this arbitrator have some kind of relationship with the other party that I don't know about?
Qualitative judgments are often difficult, and experienced parties and attorneys often rely heavily on informal networks of peers to provide advice about the strengths and weaknesses of particular arbitrators. Interviewing the arbitrator is often not possible, particularly because of the ban on "ex parte" contacts (i.e. when both parties are not present). The best guides are reputation among other arbitrators and among attorneys who tend to represent the same kind of party as you, and reading actual arbitration awards by the arbitrator under consideration. But in many settings, the awards are given orally, and there is only the most minimal written record.
Arbitration is a flexible procedure, and the process looks extremely different depending on the setting. Thus a typical labor arbitration, assessing whether a certain employee was discharged without "just cause," might be conducted by a moonlighting professor of labor law. In selecting this arbitrator, the parties are most interested in whether the arbitrator seems to have any particular bias that would apply to the fact situation they know is going to emerge in this case. Labor arbitration cases are frequently reported, and both union and management have extensive information networks that allow them advance knowledge about particular arbitrators. The parties know that the arbitrator will write a decision laying out her rationale, and that this may affect future similar cases; thus whether or not a given arbitrator has a tendency to state things in too broad terms is a criterion they will take into account. But in a small claims case, how well the arbitrator writes is not an issue to either party, since after the hearing the arbitrator will typically consider the matter for a short time and then deliver an oral decision on the spot.
Also, the most that a party may have been able to do by way of selection is to read a summary of the background of three arbitrators, and strike one who seems to spend a great deal of time as an attorney representing clients quite similar to the opponent. The opponent also got one strike, and the remaining person, about whom neither party knows very much, became the arbitrator. Yet (on the same day, in the same city) a panel of three arbitrators could be in the seventh day of hearing on a highly specialized type of commercial case, in this instance concerning what rent shall be owed each year for the next 25 years by the owners of the city's most prominent office building to the (entirely separate) owners of the land underneath it; in this instance, the attorneys making the selection would probably have intensively investigated the backgrounds of a number of real estate experts before agreeing on the three arbitrators. What the arbitrators actually thought about their prior cases, however, is impossible to fathom: in this type of case, there is usually no written rationale, and the awards consist of only one line: "the annual ground rent shall be $X."
Typical clients who have cases involving substantial numbers of dollars tend to rely on their attorneys for selection of an arbitrator, because interpreting arbitration awards for fairness requires experience, and few clients have the information networks that might provide good informal information about different arbitrators. Attorneys and other negotiators who have regular "repeat player" opponents sometimes agree with them on "short lists" of trusted arbitrators whom they use over and over again.