Jeffrey Aiken is semi-retired, having practiced with the law firm of Whyte Hirschboeck Dudek,S.C. where he was involved in arbitration practice as a neutral and party representative for nearly 40 years in addition to serving as a commercial litigator and transactional attorney. He continues to serve on the AAA’s Large and Complex Claim panels for construction and other commercial disputes. His full biography is available at http://aikenadr.weebly.com.
A hearing on the merits is where the evidentiary record and the parties' legal theories regarding the issues submitted to commercial arbitration are presented to the arbitrator. It is here where the arbitrator can decide the extent to which she will question witnesses and/or counsel for the parties.1 At one end of the spectrum is the essentially passive arbitrator who receives the evidence and arguments as presented (the "stoic arbitrator") while at the other, is the arbitrator who actively questions witnesses and engages in discussions with counsel regarding factual and legal positions that the arbitrator either does not understand or does not agree with (the "activist arbitrator"). Thus, the activist arbitrator affords the parties' counsel an opportunity to address the arbitrator’s concerns while the stoic one does not. In addition, an arbitrator may decide that one approach is not necessarily suitable for all disputes.