Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 18

PROBLEMS AND SOLUTIONS: THE ATTORNEY AND THE NON-ATTORNEY ARBITRATOR

Raoul Drapeau

I. Introduction

Much has been written about the successes and failures of arbitrators in conducting a fair hearing. Their evaluation, decision-making and meeting-management skills are crucial to producing an equitable award. Because there are winners and losers in such matters, it is not surprising that an arbitrator’s performance is called into question from time to time. This is especially true when the arbitrator is not an attorney, because a non-attorney arbitrator can understandably miss legal subtleties or stumble on important points, such as not hearing relevant evidence.

On the other hand, very little has been written about the performance of the attorneys who represent clients in arbitration hearings held before such a non-attorney arbitrator. This is an important issue, because an attorney’s behavior can certainly have an effect on the outcome of the hearing.

The use of arbitration as an alternative dispute-resolution process has grown strongly in recent years, and many more attorneys are now involved in the process. Unfortunately, their formal classroom education usually does not cover the differences in procedures and customs between the courtroom and the arbitration hearing room. Thus, unless they frequently participate in arbitrations, they either may not know those differences or fully appreciate their importance. Even if they do know them, they may forget them in the heat of the moment, an oversight that can get in the way of the progress of an arbitration hearing, regardless of who the arbitrators are.