Originally from Dispute Resolution Journal

Three years ago you chaired a panel in a case arbitrated through the American Arbitration Association. You arrive home from your family vacation to find a letter from counsel to one of the parties. The letter advises that a federal appeals court remanded the case back to the arbitrators for clarification of the award, ruling that the award could not be confirmed as written because it contained ambiguous language.

No doubt you are saying to yourself, “How could this be? Whatever happened to functus officio?” Your first instinct is to call the case manager at the AAA to find out what the Association knows about this. You have many questions about the court’s authority to order a remand to the arbitrators and the arbitrators’ jurisdiction to take action at this point.

You need more details about the remand. What does the appeals court want the arbitrators to do? Does the parties’ agreement permit that?

What about the parties? Are the parties okay with the remand? Would your professional ADR insurance protect you if you act without the consent of both parties?

You also have questions about your co-arbitrators. What if your co-panelists are not available? If they were available, would everyone have to agree on how to respond to the remand? On a practical note, you are wondering whether a case file still exists. You shredded yours a year ago and the computer you used for this case died without a backup.