The author has 15 years’ experience as an arbitrator and over 30 years’ experience in high technology and business. He is also a member of the American Arbitration Association’s panel of arbitrators. He supplies a valuable perspective on the special problems that can arise between attorneys and nonattorney arbitrators.
Attorneys representing a client in arbitration always want to go all-out to provide their client with the best chance of gaining a favorable judgment. But in hearings before an arbitrator who is not an attorney, special circumstances may arise regarding conduct, technique and presentation of evidence. This article examines the various problems that may arise in such situations and prescribes simple solutions aimed at promoting a smooth interaction between the attorney and the non-attorney arbitrator.
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.