Selecting the Arbitrator: What Counsel Can Do - Chapter 14 - AAA Handbook on Commercial Arbitration - 2nd Edition
Francis O. Spalding is an arbitrator and mediator in Northern California. He serves on the AAA's roster of neutrals and on its Large, Complex Case and Commercial Mediation Panels. He is Vice Chair of the Mandatory Fee Arbitration Program Executive Committee of the Bar Association of San Francisco. Spalding holds a B.A. from Yale University and a magna cum laude J.D. from Northwestern University School of Law. He has written widely on ADR and serves as a consultant and expert witness on ADR issues.
One deep-seated similarity between litigation and arbitration is the importance that experienced counsel attach to the attributes and characteristics of those who will decide questions of fact and make rulings of law. There is, however, this crucial difference: For all the efforts of trial counsel to seek small, advantageous influence, the law struggles mightily, and generally successfully, to prevent judicial forumshopping; and limitation on voir dire is an often-discussed reform of civil litigation.
In arbitration, by contrast, something akin to forum-shopping (the search for a panel with the array of experience and skills sought by the parties) is not only permitted but encouraged. Much rides on the issue of arbitrator selection—not only because the single arbitrator or panel will function both as judge and jury, but also because, absent the kinds of prejudicial misconduct that can justify statutory vacatur of an award, the work of the arbitrator is substantially insulated from judicial supervision or review. This distinctive characteristic of arbitration contributes significantly to the speed, efficiency and cost advantages that this process offers. Careful, thoughtful, effective participation in arbitrator selection is an important element keeping the equation in balance.