One of the most critical phases of an arbitration process is selecting an arbitrator. Sometimes the parties come to the process with a mutually agreeable arbitrator. In most cases, however, the initial phases of an arbitration case are contentious and parties do not agree on much, let alone who will serve as the arbitrator.
Neutral administrative providers such as the American Arbitration Association (AAA), JAMS, and government entities are then called on to generate a limited list of arbitrators and the parties strike and rank until an arbitrator or panel of arbitrators is selected. In 2013, the AAA introduced a new online tool called Arbitrator Search Tool that could change and improve how parties select arbitrators and provide greater flexibility.
Unless advised otherwise, the AAA will follow the appointment process the parties have provided in their arbitration clause. Additionally, the AAA also has a default process of a list of names (either 10 or 15) for the parties to rank and strike so that an arbitrator or panel can be appointed if no appointment process is included in the arbitration clause. Arbitrator Search Tool is another option for the parties by mutual agreement and it basically provides the parties with the complete listing of all AAA arbitrators online coded for their specific case type and region. In many cases, this could include dozens of arbitrators and the parties can then easily narrow and define their searches.
Having multiple selections keeps the case moving if there are disclosures and challenges made to any one of the arbitrator selections. The tool helps the parties and the AAA review and consider from a large group of AAA panel members. This tool permits parties to search the AAA panel database prior to the AAA sending a limited list of names. If the time limit passes however, under the rules or as extended by the parties jointly or by the AAA, the AAA will submit a limited list of recommended names for the parties to rank and strike and will then begin the appointment process for an arbitrator or panel. “We used the AAA’s arbitrator search tool and found multiple good candidate choices from whom to select our arbitrator. Using the AAA’s search tool was a simple, easy and quick way to review and select an arbitrator,” said William Egan, a partner at Robinson & Cole in Hartford.
Suggested uses of the Arbitrator Search Tool are:
• Parties may agree on names and submit them to the AAA for appointment.
• Parties may establish a method of how to select a final panel, from either names found on the AAA panels or any other arbitrators they wish to appoint.
• Parties may submit names confidentially to the AAA whom they feel are qualified and acceptable and will combine those names with some suggested names and submit a rank and strike list in accordance with the rules.
• AAA vice presidents or their designees may go through the database with the parties in a joint consultation about potential arbitrators.
• The parties can use the database to find an arbitrator whom you want to appoint as a party-appointed neutral arbitrator under Canon 9 of the Code of Ethics for Arbitrators in Commercial Disputes.
• If the parties have selected party-appointed arbitrators already and want those two to appoint a third arbitrator as chairman of the panel from the database, the AAA can make the search tool available to the party-appointed arbitrators and assist them with that appointment.
Whether derived from their search of the database or the AAA, neutral arbitrators will be required to execute the same disclosure forms and process so that the parties will be aware of any disclosures made and will have an opportunity to challenge the appointment.
The biographies contained in the online tool with more than 7,000 arbitrators include education, legal and professional experience, ADR practice experience, publications and speaking engagements, licensing, locale and rates charged.
This tool is proprietary property of the AAA and is only available to parties that file a case with the AAA. The use of the tool is part of the administrative service fees paid to the AAA and there are no additional costs. The parties are provided an access code that typically expires within 10 days but can be renewed if needed. •