Your arbitrators

Why this matters

The arbitrator decides your case, and you usually get one real chance to shape who that is. The selection step is short, with deadlines measured in days. If you prepare before the list arrives, you can use that chance well. After the panel is set, how you treat it affects every ruling that follows.

This is general information, not legal advice.

How selection works

Start with your arbitration agreement. It may name the number of arbitrators, require certain qualifications, or set its own selection method. The rules fill in whatever the agreement leaves open.

AAA

Under Rule R-13, there is one arbitrator unless the agreement or the parties say otherwise. If the parties do not agree on a name, the AAA sends both sides the same list of employment-experienced candidates. The rule gives each side a fixed time:

"...each party to the dispute shall have 14 calendar days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA."

The AAA then appoints from the mutual preferences. A side that does not return its list is deemed to accept every name. So always return the list.

JAMS

Under Rule 15(b) and (c), JAMS sends a list of at least five candidates for a sole arbitrator. Each side has 7 calendar days to strike two names and rank the rest. The rule says each party may "strike two (2) names in the case of a sole Arbitrator."

Check your state

• Some agreements require arbitrators with particular backgrounds, and states differ on whether certain qualifications or selection terms are enforceable. Read the clause.
• New York example. The seat of the arbitration may affect which courts can later hear a challenge. Note the seat in your agreement.

Research each name

You cannot choose well without knowing who the candidates are. Set aside a few hours as soon as the list arrives, and use your research habits from Part 1.

1. Read the administrator's biography page for each person. Note years of experience and the kinds of cases.
2. Check whether they have worked mostly for employers, mostly for employees, or both.
3. Look for published awards. Some administrators publish awards with names removed. Some arbitrators and law firms post summaries. Where awards are public or reported, see how often employees prevailed, whether fees were awarded, and how large awards were compared with the claims.
4. Search for their articles, talks, and panel appearances. Many arbitrators have written or spoken about discovery, sanctions, or parties without lawyers. Read titles and abstracts, and read the text if you can.
5. Look at their law firm or university pages.
6. Ask whether any candidate has a connection to the employer, its law firm, or its lawyers.

Keep notes with the source for each fact. Verify before you rely on it, as Part 1, Chapter 6 teaches. Do not rely on a social media post or an anonymous review.

Reading what you find

A management-side background is not the same as bias. Arbitrators from either side's practice are expected to be neutral. Treat the information as a way to understand how a person thinks, not as a reason to assume the worst.

Writings can tell you what process problems an arbitrator cares about. You may borrow a standard they have written about, but do it accurately and without a show. Do not misquote them. Panels notice when a party is playing to them.

Strike and rank on purpose

When the list arrives, rank with your research in hand.

• Strike names with clear concerns, such as a close tie to the employer's side.
• Rank the rest in the order you prefer.
• Check the qualifications your agreement requires.
• Return the list before the deadline. Put the due date in your calendar the day it arrives.

You do not need to find a perfect arbitrator. You want to avoid the clearly poor fits and prefer the candidates with relevant experience and a record of fair process.

Disclosures

Arbitrators must disclose facts that might affect their impartiality. Under AAA Rule R-16, the arbitrator and the parties and their representatives must disclose to the AAA any circumstance "likely to give rise to justifiable doubt as to the arbitrator's impartiality or independence." The rule adds that this obligation "shall remain in effect throughout the arbitration."

JAMS Rule 15(h) requires disclosures within 10 days of appointment, and says the duty continues throughout the case.

What to look for

• Past or current work for the employer, its law firm, or its lawyers.
• Past service with the same administrator as a regular neutral.
• Family, business, or financial ties.
• Prior cases involving the same parties or lawyers.

A disclosure is not a finding of bias. Many arbitrators disclose routine contacts, such as having decided other cases involving the same law firm. Read each item and ask whether it creates a real concern.

Read them the day they arrive

The window to object is short. A party who stays quiet about a known conflict can lose the right to object later. AAA Rule R-16 says a failure to comply with its disclosure duties may waive the right to object to an arbitrator under Rule R-39, which treats a party who goes ahead without a written objection as having waived it. If you have a concern, raise it promptly, in writing, through the administrator, with a copy to the other side.

Keep expectations realistic

Removing an arbitrator takes serious cause. Under the Federal Arbitration Act, a court can vacate an award for evident partiality or corruption, but that happens after the award and the bar is high. Preparing to try your case before the panel you have is usually the better use of your time. Spending effort on a failed challenge can hurt you with the people deciding your case.

Check your state

• State arbitration statutes can add their own rules on disclosure and on challenging an arbitrator. Look up the statute for the state where the arbitration sits.

Staying respectful

How you treat the panel matters in every filing and call.

• All contact goes through the administrator, with the other side copied. Never contact an arbitrator privately about your case.
• Address the arbitrator by title, and keep a courteous tone even when the other side does not.
• Do not criticize an arbitrator in filings. Disagree with a ruling by stating your reasons.
• Follow the orders exactly, even ones you dislike. Ask politely for changes.
• Read the first orders closely. They show what the panel will and will not tolerate, such as page limits, conferral expectations, and scope. Shape your later requests to match.

Hostility toward one member can hurt you with all of them. You want a panel that sees you as organized, accurate, and fair.

Checklist

• Selection method confirmed from the agreement.
• Strike and rank deadline calendared.
• Each candidate researched, with sources noted.
• List returned before the deadline.
• Disclosures read the day they arrive.
• Concerns raised promptly and in writing, if any.

Next: Chapter 4, The first conference and the schedule.

Sources

• AAA Employment Arbitration Rules and Mediation Procedures (PDF)
• AAA Employment/Workplace landing page
• JAMS Employment Arbitration Rules
• AAA Employment Due Process Protocol (PDF)
• 9 U.S.C. 10, vacatur of awards