The use of ADR in resolving complex commercial disputes is growing rapidly. Undoubtedly, ADR’s crucial advantage over litigation, also the most important decision parties will make in an ADR proceeding, is their ability to select their own neutral. Parties have complete autonomy to select whomever they want as their neutral. But, they must be sharply cognizant of a fundamental tenet: the quality of an ADR process is only as good as the neutral conducting it.
There is no “one size fits all” approach for selecting the neutral . The task can be difficult, tedious and even frustrating. Selecting the right neutral may yield substantial cost and time efficiencies and other benefits throughout the entire process meeting, if not exceeding, the parties’ own expectations—thus well worth all the time and effort expended in selecting that person. Selecting the wrong neutral may well lead to a disaster. Through the prism of my experience as an active arbitrator and mediator handling complex, high-stakes IP, IT and technology-related disputes since 1991, I now offer my own perspectives on the task of properly selecting a neutral.
My approach to the task has two basic components: one performed by neutrals, the other performed by the parties.