Call Your Arbitrators Into Question

by: Dr. Shelley Spiecker

 

Skilled trial attorneys are familiar with the benefits of supplemental juror questionnaires – learning information about prospective jurors’ case-related life experiences and attitudes that will likely influence their decision-making.  With a questionnaire, jurors can answer questions with a degree of privacy not afforded in oral voir dire.  Moreover, jurors’ ability to reflect on the question and response typically heightens the accuracy of the answer, enabling counsel to execute a more informed and intelligent selection process.

 

Why should the selection of arbitrators be any different?  It need not be. 

 

At least once a week an email comes across my inbox asking if I am familiar with the background of one or more prospective arbitrators.  While this type of informational networking is valuable, additional prospective arbitrator insights can be gained from going straight to the horse’s mouth – asking the prospective arbitrators that is.  The American Arbitration Association has a provision enabling parties to submit a list of agreed upon written interrogatories to prospective arbitrators during the arbitration selection phase.  See Rule R-9 (Administrative Conference).  Submit questions such as a prospective arbitrator’s experience with disputes of a similar nature, potential conflicts of interest, experiences with and opinions regarding certain types of contractual clauses pertinent to the dispute, and ability to fulfill the time requirements associated with the arbitration.  The responses you receive will help you make a more informed arbitrator selection, preclude a subsequent vacated decision due to a conflict of interest, and help you tailor your case presentation to the experience and mindset of your arbitrator.  All far more effective than the random email responses to “do you know anyone who might know the following prospective arbitrators?”