Selecting an arbitrator
The selection process.
Generally, the process of selecting the arbitrator will be either specified in the arbitration agreement or set forth in the rules of the arbitral association that the parties have selected (in which case the rules will become part of the arbitration agreement). Most arbitration associations use a three-step process for selecting an arbitrator:
- Step 1: If the parties have mutually selected an arbitrator, the arbitration association will just designate that individual as the arbitrator.
- Step 2: If the parties have not mutually agreed on an arbitrator, the arbitration association will provide to each party a list of candidates who can serve as the arbitrator. Each side as a certain amount of time to eliminate candidates from the list and rank the rest in order of preference. The arbitration association will then choose the arbitrator candidate with the highest total ranking.
- Step 3: If this process still fails to produce an arbitrator, the arbitration association itself will choose the arbitrator.
Ensuring that the arbitrator is unbiased.
In most cases, the selection of the arbitrator is the single most important part of the arbitration process. Thus, it is critical that you take all possible steps to ensure that the arbitrator is unbiased. Arbitrators are obligated to make known to the parties all circumstances that might affect his impartiality or create an appearance of impropriety. (An example of what arbitrators must reveal is any prior or current relationship with the parties or the attorneys representing the parties.) If the arbitrator fails to disclose this information, the arbitral award might later be overturned by a court.
Even though the arbitrator will be obligated to disclose all past or current dealings with the parties and the parties’ attorneys, the arbitrator might fail to do so. In such an instance, you should be proactive. Before selecting potential arbitrator candidates, try to obtain the following information from the arbitration association:
- Whether there is any actual or potential conflict of interest that the potential arbitrator might have (that is, does the potential arbitrator have, or might he have, a personal stake in the outcome of the dispute?);
- Whether there is any financial interest; and
- Whether there is any business, professional, social, or other relationship that the potential arbitrator may have with one of the parties or counsel that might lead the other party to question how neutral or unbiased the arbitrator really is.
Among other things, you will want to know whether the arbitrator has any past or current relationships with the parties or counsel; how often the arbitrator has arbitrated for the defendant employer and the defendant’s attorneys; the types of employment cases that the arbitrator has experience in arbitrating; and the outcomes of each of those cases.