Originally from Alternatives to the High Cost of Litigation

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Part I of this series last month established that there is a market for arbitration that exhibits some special characteristics. Among other things, it is a “matching market” where the buyers come in adversarial pairs, and it tends to be a “superstar market” subject to a type of “Matthew Effect” where success breeds success for arbitrators, while many highly qualified ones can be left behind.

Here, Part 2 explores the arbitrator selection process in more detail. There is a wide array of potential factors that may go into a party’s preference for one or another arbitrator in each case, but empirical research gauging the weight given any of these is quite limited in number and reliability, and most of it is somewhat dated.

This article examines each of the elements that might be considered by parties and discusses reasonable assumptions, research data where available, and impressions formed through experience. It also looks at the extent to which specific background characteristics might be predictive of an arbitrator’s decision tendencies to establish whether parties would be well advised to take these into account.