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Francis O. Spalding is an arbitrator and mediator in Northern California. He serves on the AAA's roster of neutrals and on its Large, Complex Case Panel. He is a member of the Northern California Advisory Council and is a former member of the National Association of Securities Dealers National Arbitration Committee. He has written widely on ADR and serves as a consultant and expert witness on ADR issues.
Skillful participation in the selection of the arbitrator is a hallmark of the skilled advocate in arbitration. Of course, effective advocacy in arbitration demands, at every stage, careful analysis and full understanding both of the similarities and the differences between litigation and arbitration. That which is different is likely to pose the greater challenge to the experienced trial lawyer; and few aspects of arbitration are more different--or, it may be said, more crucial--than selection of the arbitrator.
One deep-seated similarity between litigation and arbitration is the importance that experienced counsel attach to the attributes and characteristics of those who will decide questions of fact and make rulings of law. There is, however, this crucial difference: For all the efforts of trial counsel to seek small, advantageous influence, the law struggles mightily, and generally successfully, to prevent judicial forum-shopping; and limitation on voir dire is an often-discussed reform of civil litigation.
In arbitration, by contrast, something akin to forum-shopping--the search for a panel with the array of experience and skills sought by the parties--is not only permitted but encouraged.
Much rides on the issue of arbitrator selection--not only because the single arbitrator or panel will function both as judge and jury, but also because, absent the kinds of prejudicial misconduct that can justify statutory vacatur of an award, the work of the arbitrator is substantially insulated from judicial supervision or review. This distinctive characteristic of arbitration contributes significantly to the speed, efficiency and cost advantages that this process offers. Careful, thoughtful, effective participation in arbitrator selection is an important element keeping the equation in balance.
One effective way to maximize party control of arbitrator selection is by early mutual agreement of the parties, perhaps even before the case is formally submitted to an arbitral forum. The American Arbitration Association has recognized the advantage of early party agreement and has much facilitated such agreement by establishing a roster of neutrals that is both generalized and specialized, made up of well-recognized and experienced practitioners and full-time neutrals.
The AAA's traditional arbitrator selection process can fairly be viewed as the industry standard, one toward which other forums, such as those maintained by the self-regulatory organizations in the securities industry, appear to be moving. This process involves the assembly by the assigned case administrator, from the entire available pool of qualified panelists, of a list of possible arbitrator candidates of three to five times as many names as there are arbitrator slots to be filled--along with expanded biographical information about the panelists on this list.
It is at this point that counsel has one of the most important opportunities to have appropriate input into the neutral selection process: by advance individual consultation with the case administrator concerning the criteria that counsel hopes to find in the arbitrator. Counsel's articulation of these criteria can provide helpful guidance to the administrator in putting together a list that will please at least one party. It may well turn out that counsel who cannot otherwise agree on the time of day--and who might be unable or unwilling even to agree on the desirable arbitrator criteria--will agree on the suitability of one or more of the names that find their way onto the administrator's list in this way.
If individual consultation between counsel for one party and the administrator on desired arbitrator criteria is good, individual consultation by counsel for all parties is certainly better--and joint consultation by counsel for all parties is probably best of all. The extent to which counsel are willing to consult together about the selection of the arbitrator is necessarily left to them. The arbitrator selection process is likely to benefit from any significant degree of such consultation.
What is the propriety of counsel for one party suggesting particular individuals to the case administrator? This should be problematic only where there exists some prior relationship between the party making the suggestion (including its counsel) and the individual suggested. There should be no basis for objection to a name on the case administrator's list solely on the ground that another party suggested it--particularly since suggestion by one party is often, if not almost always, the starting point for any pre-submission agreement by the parties regarding the individual to serve as arbitrator.
What is absolutely essential is a full exploration--and disclosure to the administrator--by the suggesting party of all pre-existing contacts or relationships between the party proposing the name and the individual named; this is especially the case where the relationship is one that would ultimately be subject to successful challenge for failure to disclose. Failure to meet this standard is equivalent to placing a figurative land mine under this key step in the arbitral process.
Although the frequently declaimed dawning of the Information Age certainly offers some new and invaluable means of intelligence gathering about prospective arbitrators, it is important not to forget the best of the traditional methods developed by and relied upon by skilled advocates.
Perhaps the most useful way to analyze the means of intelligence available is not in terms of novelty or venerability, but in terms of functionality. For not every source of information--not even the best sources--is equally good at yielding every kind of information.
Biographical Information. Basic biographical facts amenable to objective determination are the obvious starting point. What profession does the prospect follow? What professional and other experiences does the prospect bring to bear? What is the prospect's age and education? What experience does he or she have as a neutral? And so on.
Under current practice, as previously noted, the
AAA's biographies, now much more elaborate in content and much improved
in format and readability, are routinely furnished to the parties. An even
more important improvement in procedure is this: Every time an arbitrator
is appointed by the AAA, the AAA furnishes a copy of the current AAA biography
to the arbitrator, who must either certify that it is current or update
it.
Sometimes entries in published professional directories
contain even more biographical detail than does the AAA biography. Another
source of arbitrator resumes is the Internet, where more and more ADR professionals
have their own web pages or are included on web pages of ADR providers,
law firms or other organizations.
All of this information provides a crucial starting point--and possibly even an end point. The basic biography may show that the prospect in question is an inappropriate candidate. Alternatively, in combination with the candidate's general reputation in the community, it may enable counsel to conclude that the prospect would be acceptable as the arbitrator. If there is doubt, however, further inquiry is likely to be justified; and this will be the case in part because the sources of information in this general category share this common feature (and possible flaw): They have been prepared by, or almost exclusively from, information provided by the arbitrator candidate, and thus may gloss over, or fail to address, concerns of genuine importance.
If more information is needed, counsel might begin
by inquiring whether any additional information is available from the case
administrator.
Another possible source of facts subject to more or less
objective determination is the press. If the candidate has a high enough
news profile to have been mentioned in the professional or general press,
a search of a computer-accessible database of news reports or an Internet
search may be justified. As to the candidate who enjoys less public prominence,
such searches, although less likely to turn up numerous entries, still
may yield some gem.
Books and Articles. Information of a different character may be revealed by a search for writings by the candidate. The fact that the candidate has written books or articles has some importance as a matter of objective biographical fact--and is likely to be reflected in the sources of information already mentioned. These writings, if related to the arbitration process, may reveal the candidate's understanding of the adjudicative and arbitral processes and his or her approach to, and views upon, such matters as the proper role of the arbitrator, the proper conduct of an arbitration proceeding and the like. At least when the subject matter of a writing appears relevant to the issues in dispute and the writing is reasonably accessible, such a search probably ought to be given high priority. In addition to law library catalogs and the Internet, searches can be made using law-related computer search services to find the full text of recent law review articles. Even today it is probably worth the effort to search computer accessible sources for written texts whether or not it is thought worth while to visit a remote library in pursuit of such a search.
Anecdotal Information. Beyond objective biographical information and an insight into the views of the candidate, the experienced advocate is likely to place a high premium upon anecdotal information from third parties based on live experience with the candidate in an arbitrator's role. Counsel will be particularly interested in the reactions of other lawyers who have appeared before the candidate in other cases.
Most large law firms and sophisticated advocates skilled in arbitration keep records designed to capture past experience with individual arbitrators in order to inform future choices. Finding the people or firms to ask about prospective arbitrators is the first step in any information search. Home is the first place to start. The everyday experience of lawyers in large firms who receive internal e-mail messages inquiring about a prospective arbitrator confirms how well recognized this methodology is.
If a candidate is someone with long experience in the community, it may be worthwhile to make a "cold call" to acquaintances in other local firms likely to have had some contact with the prospect. In some circumstances--principally in the labor area or if the candidate has appeared as an arbitrator in a securities industry arbitration, a field in which the forums maintained by the National Association of Securities Dealers and other "self-regulatory organizations" make awards available for public inspection--it may be possible to identify lawyers who represented the parties in those proceedings. Once such a search is undertaken, each person spoken to ought to be asked to suggest other possible sources.
Not surprisingly, there are potential difficulties in obtaining anecdotal information about arbitrator candidates. Some individuals and firms regard this information as confidential or proprietary; some limit the availability of this type of intelligence to a circle of close, professional friends or colleagues; and in a day when everyone is bombarded by unwanted inquiries, there may be resistance to the effort involved in digging out and forwarding such information, even when there is no other reason to withhold it.
One useful starting point to obtaining anecdotal information is the AAA arbitrator resumes furnished to the parties with the list of potential candidates. These resumes contain the names and telephone numbers of the attorneys for both sides who have appeared before the arbitrator candidate and have agreed to serve as a contact.
Even if anecdotal information can be captured, its value will depend on such variables as who collected it, how long ago and under what circumstances, and how, if at all, it has been memorialized. Old information, or information gathered by someone no longer available to provide a foundation for understanding, may be more misleading than informative. Thus, the worth of the information such a search may reveal needs to be evaluated concurrently with the conduct of the search itself.
Interviews with Prospects. One final method of intelligence-gathering deserves mention, even though its potential cost probably justifies it only in very large or otherwise unusual cases: interviews with prospective arbitrators. One aspect of this tool distinguishes it from the rest: It can be undertaken appropriately only if done jointly by counsel for all parties, and thus depends upon the agreement of the parties. This means, at least in many instances, the assistance of the administering organization should be invoked. Even if the parties reach an agreement without the assistance of that organization, they should keep it informed throughout so that it may render needed services promptly.
It is essential to recognize that an agreement to interview arbitrator candidates does not constitute an agreement with respect to arbitrator selection. While counsel for opposing parties may well agree upon a selection based upon the interviews, that out come is not guaranteed--throwing counsel back upon whatever method for selecting the arbitrator is provided under the parties' agreement or under the applicable rules of the administering organization.
The list of candidates to be interviewed should be winnowed by party agreement. The terms of the arrangement--including whether candidates should be offered a fee for their time in appearing to be interviewed--need to be worked out fully and carefully, lest the process become the seedbed for further disputes between the parties. Presumably an hour or less with each candidate should be sufficient for an appropriate interview. Counsel should agree, insofar as possible, upon questions of common interest, and counsel for individual parties should also be afforded an opportunity to propound questions of particular interest to each. All such questions should be known to all counsel in advance. An agreed order of questions and questioners should make it possible, if the parties so desire, to leave the candidates at least some what in doubt as to what party is interested in what question.
In general, questioning should not be addressed to biographical details that may be readily ascertained in the AAA biography or in professional directories. The focus should be on the substantive expertise that has brought the candidate into the pool and, at least in the case of lawyer-candidates, on the candidate's experience in and philosophy of the arbitration process.
It is essential to fully effective advocacy in arbitration that counsel think through and attend carefully to the opportunities, unmatched in litigation, for exercising the influence appropriate to this alternative forum upon the qualifications, the capacities and even the identity of the central figure in the arbitration process--the arbitrator.
SIDEBAR:
An arbitrator spends most of the time until the case is submitted listening to the parties and looking at the evidence. Attentive listening and careful observation demand a measured patience--patience enough to hear and observe all that is relevant and appropriate, but also an ability to intercede, politely but firmly, when the bounds of relevance and propriety are exceeded or unnecessary delay is threatened. For while the arbitrator must see and hear attentively that which is properly part of the case, he or she is no less obliged to keep the arbitral process free of distraction and away from detour.
Fairness--the essential touchstone of the arbitral function--demands open-mindedness. The arbitrator must be a master of the "rolling hypothesis," able to assemble whatever has been seen and heard into a cohesive understanding of the case, but always ready, at least until the last submission of the last party has been absorbed, to revise the unfolding story even in fundamental ways, if warranted. Scarcely less important is the perception of fairness. The parties must leave the arbitration process, win or lose, with the sense that they have been heard and understood in full, and that their views of the case have been given thorough, balanced consideration.
The arbitrator conveys this sense of fairness by neutrality; by balance in body language and tone of voice, by evenhandedness in dealing with witnesses for both sides and with evidentiary disputes, and by dealing effectively with obstreperous or provocative counsel or a misbehaving party. The arbitrator must be prepared, however, to put equability to one side when necessary to meet some crisis in the process.
Another quality is the ability and willingness to let the parties' counsel present the case their way. The arbitrator does not sit as a monitor of the advocacy skills and tactics of the parties' attorneys. He or she must be prepared, however to intervene to keep the proceeding on a coherent track and free of avoidable inefficiency.
Inquisitiveness is a necessary quality in the arbitrator, but this curiosity must be cabined within the limits appropriate to the case. The inquisitive arbitrator will wonder about facts somehow related to the case on which no evidence is submitted. If those facts are relevant to the arbitrator's assigned task, they may be inquired into; if not, no matter how intriguing they may seem, the arbitrator must leave them aside.
In addition, the arbitrator (or panel chair) must know the arbitral process and have the skills to guide and control it in a way that is fair to all parties. Training and, above all, experience, are the sources of these skills. In some cases, special knowledge of the industry or of the business context in which the principal issues arise, is also desirable in the arbitrator.
In sum, the ideal arbitrator will have near-perfect attentiveness
and an intellect fully up to the demands of the case; but the other qualities
of the ideal--patience, open-mindedness, an equable temperament, restraint,
inquisitiveness--each balances on a sort of knife edge; each demands a
stable, often near-invisible performance almost all of the time. But always
there must be the sense that, upon presentation of a genuine demand, the
arbitrator will do something decisive, surgical yet not quite predictable,
to put the straying proceeding firmly back upon its proper path.--f.o.s.
For further information, please e-mail: fos@fos-adr.com .
fos-art1.html created July 8, 1999: rev. 01; revised November 9, 1999:
rev. 02