Selecting the Ideal Arbitrator - Dispute Resolution Journal - Vol. 60, No. 3
Charles J. Moxley, Jr. is counsel to the law firm of Kaplan Fox & Kilsheimer LLP in New York City, where he specializes in litigation and arbitration. He is also an adjunct professor of law at Fordham University School of Law. He has served on the American Arbitration Association’s Commercial Panel since 1977. This article is adapted from a presentation he made in New York in June 2005 on the process of selecting an arbitrator. Mr. Moxley welcomes comments from readers about their experiences with arbitrator selection. He may be reached at firstname.lastname@example.org.
Originally from Dispute Resolution Journal
In addition to being well prepared, there is no more important step in arbitration than selecting the arbitrator. This article stresses the importance of identifying a well-qualified arbitrator who will be responsive to the client’s side of the case. It also describes the “Enhanced Neutral Selection Process” that the American Arbitration Association recently launched, which is available in certain large, complex cases administered by the AAA.
The quality of an arbitration obviously depends on the fair-mindedness, experience and ability of the arbitrator or panel selected to hear the dispute. But is it sufficient for counsel to select arbitrators having such qualities? If the question were asked in the context of jury selection, the answer would clearly be “no.” Litigators go to famous lengths to select jurors who seem likely to view their case favorably. Why shouldn’t those who select arbitrators do the same?
Yet many attorneys seem to believe that, in arbitration, it is sufficient to select well-qualified arbitrators without regard to their potential responsiveness to the client’s case. I believe that following such an approach misses a crucial step in the process. In over 28 years as a commercial arbitrator I have seen many cases in which intelligent and fair-minded arbitrators hearing the same evidence have reached significantly different conclusions as to the appropriate award.
Identifying arbitrator candidates who are likely to be responsive to one’s case is a daunting task. However, with the Internet and ever-expanding data bases, information from which to make such a judgment is greater than ever before.