ADR Veterans Share Insights to Help Guide Process
Skilled arbitrators must have the temperament and expertise to guide opposing parties through the pressures of dispute resolution, allowing each side to communicate their position within the bounds of the agreed-upon processes and procedures.
Professor Hiro N. Aragaki recently made that point as moderator of “How to Select the Right Arbitrator: Tips from the Experts,” a panel hosted by LMU Loyola Law School and JAMS, the dispute-resolution powerhouse. Joining Aragaki in discussion were William Fitzgerald, arbitrator consultant and former commercial arbitrator; Serena Lee, general manager, JAMS; Sarah Reynolds, managing partner, Goldman Ismail Tomaselli Brennan & Baum LLP; and Les Schiefelbein, founder and CEO, Schiefelbein Global Dispute Resolution. [View the panel]
The panel discussion aimed to address what is arguably one of the most important steps in an arbitration: selecting the neutral. During arbitration, attorneys often miss or do not know of the opportunities to influence the selection process, putting themselves and their client at an early disadvantage.
Aragaki began the discussion by defining its two main topics. What are the criteria to look for in selecting an arbitrator and what makes them a good fit? And what are methods that you might consider for performing due diligence during selection to identify an arbitrator that meets your criteria?
“You want an arbitrator who is other-oriented. He or she is not oriented to themselves, they are oriented to the parties, the counsel, what is being said, what is being prepared and what is being shown,” said Les Schiefelbein in response to Aragaki’s opening remarks. “They have to temper their expectations in their early decision making by being fully enveloped with what the other people in the proceeding are doing.”
Schiefelbein continued to outline lessons learned during his decades-long career as in-house counsel at Lockheed Martin. “If the parties have agreed to the roadmap that the arbitrator has proposed, and they follow the roadmap. They have the opportunity to fairly present their cases, and they might be surprised by the outcome, but they’re not surprised by the process. The process is the fairness. As long as you can get the process as an arbitrator, you have delivered to the parties.”
The panelists agreed that though judges and magistrates may cultivate a certain gravitas and respect of the counsel, there should be no rule during selection favoring them over other qualified neutrals based on their status alone.
“It’s often misguided to prefer judge arbitrators as a rule. Their subject matter experience may or may not be there for a particular case,” said William Fitzgerald. “Counsel may have to scrutinize judges more because there are some who believe that since they are judges, it is not necessary to familiarize themselves in the procedures, rules and processes of an arbitration,” he added. “And if you have a person like that, then you have a problem.”
“You want somebody who is not going to rely on discovery the way that a judge would in most cases,” said Sarah Reynolds, who represents technology and pharmaceutical companies before domestic and international arbitral bodies. “Especially from the dispense side, I’m usually looking to minimize access to discovery. Also, arbitrators have this ability to be far more creative in how they resolve disputes than a traditional judge is, and a lot of my clients have really benefitted from that creativity. You want someone who is comfortable thinking outside of the box and doesn’t have to pick a winner and a loser and can sort of split the baby in more creative ways than a traditional judge might be willing to do.”
In addressing the issue of diversity on arbitration rosters, the panelists underscored the importance of reversing a long-standing problem in the legal and ADR communities. “I often think of this as a two-pronged approach,” said Serena Lee, who manages JAMS’ San Francisco resolution center.
“On the one hand, the providers certainly have to identify and recruit diverse neutrals, but on the flip side of course is that we need the litigators to choose those neutrals,” Lee said. “We can give a whole roster of well-qualified diverse neutrals, but if they’re not being selected by the parties either implicitly or explicitly, it becomes a sort of moot exercise on the neutral’s side.”
The discussion concluded with panelists responding to viewer-submitted questions and leaving their parting thoughts on the preparation for and practice of arbitrator selection.