Deciding on the Decider: Tips on Arbitrator Selection

Steve Schrey

SSF-article-inArbitration can arise in a variety of legal matters facing solo and small firm lawyers, such as in real estate, employment, and construction, or in drafting a dispute resolution provision for client transactions.

One of the most important steps in handling an arbitration of any size is the selection of the arbitrator. While the process can seem intimidating, it need not be so. Former President Bush may not have coined the term “decider” but it aptly captures the role of the arbitrator. Arbitration hearings are usually confidential and awards are not published. While an arbitrator’s jurisdiction arises out of the parties’ contract and applicable law, he or she is not tied to the formalities of court litigation. Evidence rules are informally applied and arbitral remedies need not be structured as legal judgments. Any challenge to an award in a court, rarely successful, can be done only on narrow grounds. Investing in the process of deciding who will be the “decider” is thus time well spent.

What type of arbitrator is best suited for the case is an early decision. Many lawyers look for current subject matter expertise, others for arbitration experience regardless of substantive issues. Some prefer a retired judge or a full-time neutral no longer practicing law. Gathering intelligence on potential candidates is always critical and arbitrators’ websites or LinkedIn resumes are good places to start. Most arbitration rules allow ex parte communication with the candidate before selection without later disqualification. And, never overlook colleagues’ experience as a resource.

Agreement by the parties on an arbitrator is best but failing that, the rules of the American Arbitration Association, JAMS, ADR Services, and other providers provide a process for arbitrator selection. Typically, counsel strike names of candidates they object to from lists of 10 or less, and then rank any remaining to determine the arbitrator. If no rules are incorporated, California’s arbitration statute, Code Civ. Proc. Sections 1280-1294, directs a court to select an arbitrator on a petition by a party.

Once an arbitrator is designated by any of the methods described above, under the Ethics Standards in the Rules of Court, he or she must provide the parties with any needed disclosures. The parties then have 15 days in which to object to the arbitrator for any reason. Absent disqualification, the arbitrator is confirmed and the parties have their “decider” and can proceed to the merits for a decision.

About the author:

Steve Schrey is a full-time mediator and arbitrator based in San Francisco, focusing on business disputes, insurance and real estate matters, and is a member of BASF’s mediator panel. He can be reached at steve@schreyadr.com,  and www.schreyadr.com.