The Stoic Arbitrator v. the Activist Arbitrator—A Solution - Chapter 16 - AAA Handbook on Arbitration Practice - Second Edition

Author(s):

Jeffrey Aiken

Page Count:

10 pages

Media Description:

1 PDF Download

Published:

December, 2015

Author Detail:

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.

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Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 16

THE STOIC ARBITRATOR V. THE ACTIVIST

ARBITRATOR—A SOLUTION

Jeffrey Aiken

I. Introduction

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.

An arbitrator’s view of her role as the ultimate decision maker of the

issues submitted to arbitration is likely to determine whether she will be

a stoic or activist arbitrator during the hearing.2 This article is intended

to make arbitrators and counsel aware that this decision can influence the

outcome of the proceeding. In the next sections, the rules that govern an

arbitrator’s conduct at the hearing will be explored.