By: Svetlana Gitman, Vice President, AAA-ICDR® Commercial Division
When faced with a disagreement that needs resolution, finding the right arbitrator is pivotal. Yet choosing the right arbitrator requires more than just picking a name from a list—it requires strategic thinking and careful consideration of various factors. A common scenario where attorneys ask their colleagues for feedback on particular individuals is not sufficient; however, asking specific questions, rather than just general feedback, will help parties identify the right individuals for their dispute.
Following are precise considerations attorneys should include in their fact-gathering missions before selecting an arbitrator.
Knowledge of the Difference between Arbitration and Litigation
An effective arbitrator should have thorough understanding of the differences between arbitration and litigation. They must understand that the purpose of arbitration is speed and efficiency, and therefore litigation procedures like discovery and motion practice should be limited. This familiarity will enable the arbitrator to guide the parties through the arbitration process and achieve their goals of quicker and cheaper dispute resolution.
Expertise and Experience
The first step is to identify the nature of the dispute and specific issues involved. Once this is clear, it’s important to determine whether the ideal arbitrator needs to have particular expertise (such as someone who understands digital currency and metaverse disputes) or if the issues are ones that most experienced commercial litigators will understand. By choosing someone with relevant experience, you can be sure they understand the intricacies of the subject matter if your dispute requires that and therefore will provide a well-reasoned decision. Likewise, if your dispute does not require any specialized knowledge, you can avoid choosing an arbitrator who might be tempted to interject matters not at issue.
Decisiveness and Comfort with Tough Decisions
A good arbitrator must be decisive and comfortable making tough decisions. The arbitration process can involve difficult choices. It is essential that your arbitrator is not one that will be hesitant or indecisive, characteristics that unfortunately can prolong the process, create uncertainty, and add costs for the parties.
Reputation and Trustworthiness
Research potential arbitrators to make sure they have a history of rendering fair and impartial decisions. Look for testimonials, reviews, or endorsements not just from other colleagues who may tend to select the same arbitrators over and over again, but from those outside your firm or organization who can provide insight into whether this person is someone who can resolve your dispute professionally and ethically.
Communication Skills and Availability
As suggested above, consider interviewing potential arbitrators to gauge their communication style and responsiveness. This will help you understand if this candidate has the necessary availability to devote sufficient time to your dispute and meet any deadlines or expectations you may have.
Understanding Your Client’s Needs
An arbitrator should be attuned to the needs and concerns of your client. They must be able to empathize with the parties, listen carefully to their positions, and take their interests into account when making a decision. By choosing an arbitrator who you believe understands your client’s needs, you can help ensure a more satisfactory outcome for the parties.
Diversity enhances the decision-making process by bringing different perspective, experience, and background to the table. Especially if your client is diverse or has made a commitment to selecting diverse decision makers, honor that by considering candidates that may be different from whom you’ve considered in the past or the “usual suspects” your firm and colleagues select.
AAA Enhanced Arbitrator Selection Process for Large Cases
The AAA-ICDR offers an Enhanced Arbitrator Selection process on its large, complex cases, which allows parties to receive additional information before making their selections. If the parties agree, they can submit questions for candidates to answer, ask the AAA® to pre-screen candidates by certain criteria, or the AAA can arrange for all parties to interview the candidates by telephone or video call.
The secret to selecting the right arbitrator lies in thorough research and careful consideration of what is important to your client. By focusing on the factors discussed above, you can help ensure that the dispute is resolved more efficiently, economically, and professionally.
The author created this content with the help of ChatGPT.
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