The most consequential decision in the case, and how to make it well.
Esshaki Legal Media TeamCurrent as of January 2022
In arbitration the decision-maker is chosen rather than assigned, and the choice
has more effect on the outcome than any other single factor.
Sole arbitrator or panel. A sole arbitrator is faster and cheaper; a
three-member panel spreads the risk of an outlier and is standard for larger
disputes.
Selection methods. Strike and rank from a provider list; each side appoints
one with the two selecting a chair; or appointment by the institution.
Party-appointed arbitrators must be independent and impartial under most
commercial rules, notwithstanding the appointment. Non-neutral party appointees
survive in some domestic contexts and are the exception.
What to research. Prior awards where available, published writing,
professional background, prior appointments by counsel and by parties in the
matter, and the outcomes in comparable disputes.
Qualities that matter. Subject matter familiarity sufficient to follow the
evidence; case management discipline; availability for hearing dates within a
reasonable period; and a record of issuing awards promptly.
Disclosure. A continuing obligation covering relationships with parties,
counsel, witnesses and funders. Objections must be raised promptly or are
waived.
Interviews of prospective party appointees are permitted within limits on
subject matter and should be conducted carefully.