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

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?
author

Imre Szalai

Professor Szalai graduated from Yale University, double majoring in Economics and Classical Civilizations, and he received his law degree from Columbia University, where he was named a Harlan Fiske Stone Scholar. After graduating from law school, Professor Szalai practiced antitrust law in New York City, and then he practiced complex…

author

Steven Shapiro

Steven Shapiro teaches, writes, and speaks on topics in complex hospitality issues and construction law at the American University, Washington College of Law, blending his career in law firm practice, construction engineering, and academics. Recognized for innovation in bringing the realities and economics of commercial practice into the classroom and…

author

Erin Archerd

Erin Archerd joined the Detroit Mercy Law faculty in Fall 2015. Prior to becoming a professor, she was an associate in the San Francisco office of Covington & Burling LLP, where she focused on corporate transactions, primarily in the information technology and biotechnology sectors, as well as preparing an amicus…

author

Amy Schmitz

Professor Amy Schmitz is the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law. From 2016-2021 Professor Schmitz was the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and the Center for Dispute Resolution.…

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