Arbitration Tips-N-Tools (TNT): Round 17

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In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about the indicators would-be arbitrators should have in mind when deciding whether to decline a case, especially in a digital world, and faced with the complexities of the Covid-19 pandemic.

Round 17: What indicators should would-be arbitrators have in mind when deciding whether to decline a case?

Responses:

A) Steven G. Shapiro –

1. To decline or accept a case, the arbitrator should, of course, be aware of actual conflicts, including financial interests and also personal relationships, perhaps some sort of animus (bias) against a party or counsel.
2. A harder decision is when the arbitrator feels, in good faith, that there are no actual conflicts, but there are arguable apparent conflicts.
3. There may be situations when the facts of a case trigger a strongly held point of view, or maybe put another way, that values may play a role. By way of example, there may be a case of reverse mortgages
4. That trigger innate feelings of protecting the elderly, while state and federal law may allow for valid use.
5. An arbitrator may have an overloaded case schedule and still be tempted to take a case hoping to find a gap in the schedule.

B) Imre Szalai

1. Are there any doubts as to the ability of the arbitrator to be impartial?
2. Arbitrator’s availability
3. Do the governing arbitration rules and arbitration agreement provide for a fair hearing?

C) Erin Archerd

1. Ability to hear the case in a timely manner. The biggest complaint I hear from lawyers about arbitrators is that it feels like the case is dragging when they chose arbitration to get to a fast resolution. This is particularly true when lawyers are voluntarily arbitrating and not simply subject to a pre-dispute arbitration agreement.
2. Conflicts. This includes conflicts or lack of desire to work with other arbitrators if on a multi-arbitrator panel.
3. Subject matter knowledge. Especially if you aren’t getting the case from a referral list of specialists, but from word of mouth, do you have the knowledge necessary to add value and make a sound decision or would it be better to refer to another arbitrator?