By Jeffrey T. Zaino, Esq.
Without a doubt, 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, like the American Arbitration Association (AAA), are then called upon to generate a limited list of arbitrators and the parties strike and rank the names on the list until an arbitrator or panel of arbitrators is selected. Recently the AAA introduced a new online tool called Arbitrator Search Tool that is changing and improving how parties select arbitrators.
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 to use 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 be dozens of arbitrators and the parties can then easily narrow and define their searches.
Having the flexibility of 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 AAA review and consider from a large group of AAA panel members. This tool permits parties to search the AAA panel database prior to AAA sending a limited list of 10 or 15 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 more limited list of recommended names for the parties to rank and strike names and will then begin the appointment process for an arbitrator or panel.
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;
• The AAA case administrator 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 they want to appoint as a party-appointed neutral arbitrator under Canon 9 of the Code of Ethics for Arbitrators in Commercial Disputes; and
• If the parties have appointed party-appointed arbitrators already and want those two to appoint a third arbitrator as chair 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 by a list from the AAA, neutral arbitrators will still 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 over 7,000 arbitrators include education, legal and professional experience, alternative dispute resolution 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 the AAA and there are no additional costs. The parties are provided an access code that typically expires within ten days but can be renewed if needed.
Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.