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September 15, 2014

A New Search Tool For Selecting The Right Arbitrator

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.

July 15, 2014

Consumer Clause Registry

By Jeffrey T. Zaino, Esq.

The American Arbitration Association (AAA) will implement and maintain a publicly available Consumer Clause Registry (Registry) as of September 1, 2014. The Registry was created to provide more access to information about the AAA's consumer arbitration services. In particular, the Registry will contain a list of businesses that have submitted their consumer arbitration clauses to the AAA and after review the AAA has determined that the clause substantially and materially complies with the due process standards of the Consumer Due Process Protocol (Protocol). The main principles of the Protocol are:

• Fundamentally Fair Process
• Access to Information Regarding ADR Program
• Independent and Impartial Neutral
• Independent Administration
• Quality and Competence of Neutrals
• Reasonable Cost
• Reasonably Convenient Location
• Reasonable Time Limits
• Right to Representation
• Mediation
• Access to Information
• Arbitral Remedies

By accessing the Registry, parties will be able to search businesses by name to determine if the AAA has reviewed their consumer arbitration clause and will administer their consumer arbitrations. If a business has not registered its consumer clause prior to the filing of a consumer case, the AAA will require that the business register its clause at that time. In addition, the Registry will include on-line access to the arbitration clause reviewed by the AAA and may also include other documents related to the arbitration clause.


Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

Arbitrators Acting Within and Exceeding Their Powers

By Gerald M. Levine

Finding that an arbitrator has exceeded his or her powers is exceedingly rare. An arbitrator's interpretation of the parties' contract prevails even if there is "arguably a better [one]." American Postal Workers Union, AFL-CIO v. United States Postal Service, __ F.3d __ (2d Cir. June 6, 2014) (reversing the judgment). Exceeding powers is not satisfied by poor reasoning or bad logic. It requires showing the arbitrator has acted "outside the scope of his contractually delegated authority." Oxford Health Plans LLC V. Sutter, 133 S.Ct. 2064, 2068 (2013).

In American Postal Workers Union, the plaintiff moved to vacate the award on the basis that the arbitrator exceeded his powers by applying the doctrine of collateral estoppel against plaintiff. However, the parties' contract contained an issue preclusion provision. In the district court's view "[i]f one were to draw any inference from [the provision], it would be the converse inference that, because the [provision] explains where principles of preclusion do apply, those principles do not apply elsewhere" (emphasis in original). While the Circuit panel may have agreed that the district court's interpretation made more sense and was better reasoned, it nevertheless concluded that it erred in substituting its own judgment for that of the arbitrator and remanded the matter with instructions to confirm the arbitral award.

That different arbitrators may interpret the law and facts differently goes without saying. That one may find for the claimant and another for the respondent is not impossible, but neither does it require a conclusion that either exceeded his or her powers. In Aerotel, Ltd. v. IDT Corp., 13-3085 (2d Cir. June 3, 2014) the Court of Appeals noted that "[t]he District Court properly concluded that while another panel might have reached a different conclusion, the panel in this case, whether correctly or not, was unquestionably applying the governing law."

What does it take for a finding that an arbitrator exceeded his or her powers? To judge from a variety of decisions from different circuits the answer is that it is exceedingly difficult. The "showing required to avoid confirmation is very high," D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2d Cir 2006). In Bain Cotton Company v. Chestnutt Cotton Company, 531 Fed.Appx. 500 (5th Cir. June 24, 2013) (Unpublished) (which involved issues regarding the management of an arbitration), the Court emphasizes an important overriding principle: it observed that "[t]his appeal presents a quintessential example of a principal distinction between arbitration and litigation, especially in the scope of review. Had this discovery dispute arisen in and been ruled on by the district court, it is not unlikely that the denial of Bain's pleas would have led to reversal; however, under the "strong federal policy favoring arbitration, judicial review of an arbitration award is extremely narrow." Id., at 500-501.

To clear the bar for exceeding powers, the movant must offer proof that the arbitrator "abandoned [his] interpretative role." Oxford Health Plans, supra. In distinguishing Oxford from Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 684 (2010), the Supreme Court held the arbitrator had "construe[d] the contract (focusing, per usual, on its language), and did find an agreement to permit class arbitration." Section 10(a)(4) "permits courts to vacate an arbitral decision only when the arbitrator stray[s] from his delegated task of interpreting a contract, not when he performed that task poorly." Id. This standard grants arbitrators a wider space for their choices and decisions and supports a "narrow[er]" role for the court.

For this reason, if the only argument the losing party can muster is that the arbitrator was mistaken in construing the contract, there is no basis for vacating the award. This was made clear in American Postal Workers Union, supra, i.e., even though a different interpretation would have changed the result in favor of the losing party, the arbitrator's judgment is paramount. "The crux of the excess-of-powers standard is 'whether the arbitrator's award draws its essence from the [agreement]," citing St. Mary Home, Inc. v. Serv. Emps. Int'l Union, Dist. 1199, 116 F.3d 41, 44 (2d Cir. 1997). If the evidence does not support movant's contention that "the arbitrator act[ed] outside the scope of his contractually delegated authority." Oxford Health Plans, supra., there is no legal basis for vacating the award.

Gerald M. Levine is a member of Levine Samuel, LLP. He practices in New York City and is on the list of neutrals of the American Arbitration Association. Mr. Levine runs an ADR blog on domain names and cybersquatting at http:www.iplegalcorner.com. He is the author of a forthcoming book to be published in Fall 2014 on domain name arbitration under the Uniform Domain Name Dispute Resolution Policy.

June 23, 2014

Guidelines and Best Billing Practices for Arbitrators

By Jeffrey T. Zaino, Esq.

A primary objective of arbitration is to reduce the costs of dispute resolution. Arbitration costs can include administrative fees of an alternative dispute resolution (ADR) service provider and the arbitrator's fees. It is imperative that ADR service providers, neutrals and advocates work together to ensure that no one is precluded by cost from using an arbitration process. At the same time, ADR service providers and arbitrators deserve to be fairly compensated for their time and services.

Arbitrators should keep in mind the need for simplicity in their fee structure but rates for serving on AAA panels, for most case types, are at the complete discretion of the arbitrator. There are, however, certain best billing practices for an arbitrator. This article will provide some guidelines and best practice recommendations made by AAA Neutrals Services. It should be noted that these guidelines and best practices for billing are important regardless of the ADR forum. Also, many ADR providers likes JAMS and CPR also have similar high expectations with respect to arbitrator billing practices.

Per Diem/Hourly Fees

Arbitrator fees should be all inclusive. Per Diem fees are expected to include a full day's hearing time (7 hours). With either per diem or hourly fees, no billing should be submitted for (a) time spent discussing the case with AAA staff; (b) written, telephonic, faxed, and electronic communications with case management staff; (c) local travel time and expenses; (d) personal administrative assistants; or (e) stamps, local calls, copying of materials, etc.

If the arbitrator intends to charge for any of these costs separately from the hourly or per diem fee, the arbitrator must so state in the fees section of the AAA panel biography.

Study Time

If the arbitrator intends to be compensated for study time, it must be listed as a separate fee on the panel biography. A detailed billing sheet documenting the specific activity and actual time spent should accompany the fee request on each case on which the arbitrator serves.

The possibility and extent of study time must also be discussed with the Case Manager at the time of appointment or following the first preliminary hearing. Parties have a right to know in advance the approximate amount of your charges.

Cancellation Fees

Since many AAA arbitrators are busy practitioners, they do not charge a cancellation for postponements of hearing dates or cancellation because of settlement. If an arbitrator requires a cancellation fee, it must be listed as a separate fee on the resume, it should be for unusual circumstances, and it should require no more than 48 hours notice. Notice of postponements or cancellations may be received from a Case Manager by telephone or by e-mail. Any request for postponement or cancellation fees must be accompanied by a statement that the arbitrator was unable to reschedule or make professional use of the billed time.

Expenses

In most cases, no additional expenses will be incurred as hearings will be held locally. If the arbitrator serves as an arbitrator on a case outside of his or her locale, it should be clarified before the hearing that reasonable, necessary air travel, hotel room accommodations and meals will be reimbursed. Entertainment costs and personal expenses are not reimbursable. An arbitrator may be required to submit receipts for expenses.

Post-Award Activity

If a request or remand by the court to modify an award is necessitated by an error by the arbitrator, the arbitrator should dispose of the request or remand without additional compensation.

If a request or remand for modification does not require a great deal of effort, such as the omission of a word in a company name, the arbitrator should dispose of the request or remand without additional compensation.

If a request or remand for modification is not the result of an error by the arbitrator or requires significant effort on the arbitrator's part, then it is appropriate to be compensated for such activity. AAA will attempt to collect such compensation in advance.

Billing Language

The language used in describing fees and expenses should be clear and detailed, not summarized, as for example, "for services rendered".

Every effort will be made to collect arbitrator compensation before the hearing date. If the compensation has not been deposited, pursuant to the rules the arbitrator will be given the option to suspend or terminate the proceeding.

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

Mediation in E-Discovery

http://nysbar.com/blogs/ResolutionRoundtable/


By Steven C. Bennett


Commentators have increasingly remarked on the possibility for use of "Alternative Dispute Resolution" (ADR) as a means to resolve discovery disputes, especially those in the growing field of "electronic discovery" (e-discovery) in litigation. The volume of "electronically stored information" (ESI) and ever-changing communications, storage and other applications technologies present a great challenge for courts, which may not have the resources and expertise to tackle the project management issues that often arise in e-discovery.

Cooperation and transparency are essential elements of modern e-discovery practice. Because the parties best know their own needs and capabilities, negotiation, rather than motion practice and judicial supervision, has become a key to efficient litigation. Yet, counsel sometimes shirk their responsibility to gain an understanding of their clients' capabilities, and may assert overbroad demands and objections to discovery. Where parties do not confront their issues in good faith, and early in the discovery process, a case can become tied up in motion practice, sideshow requests for sanctions, and "do over" inefficiencies.

Under federal rules, a "special master" may be appointed to supervise all or a portion of the e-discovery process. Typically, the master's appointment terms are negotiated between the parties, and "so ordered" by the court. The master's fees are generally paid by the parties. Due to expense, masters are not routinely used. Most courts rely on magistrate judges to supervise more complicated discovery projects in federal litigation. Several districts have adopted mediation programs, which could be adapted to the e-discovery context. In many cases, a judge may perform "triage" to determine what particular issues, or what forms of discovery, may best contribute to efficient resolution of the case.

In New York's state courts, judges may appoint special "discovery referees" to oversee complicated or contentious cases. The courts also may draw upon retired judges as "judicial hearing officers." Several of the Commercial Division courts have developed programs for more organized referral of cases, where judges spot problems brewing in the discovery process. With such resources, a neutral may help set a "tone" of civility in the discovery process, which can facilitate resolution of problems, without the need for motion practice. Courts might also benefit from access to technology professionals, assigned to the court, to help judges address e-discovery issues.

In many cases, organized discussion of e-discovery problems can produce negotiated solutions. A neutral need not resolve all e-discovery disputes in a single session. The process may proceed in "steps," toward resolution of significant issues. Where problems remain, moreover, the process of review by a referee provides increased clarity of understanding, such that resolution by the court may be made more efficient.

The 2012 report on commercial litigation in New York courts recommended, among other things, development of a cadre of qualified referees and other resources to assist in management of the discovery process. Not all these efforts necessarily require additional resources from the courts. One particular suggestion is that judges focus early on discovery efforts that may help to settle a case. Many of the best practices of the Commercial Division judges could be extended to litigation in other areas.


Steven C. Bennett is a partner at Park Jensen Bennett LLP, in New York City. The views expressed are solely those of the author, and should not be attributed to the author's firm, or its clients.

May 22, 2014

Excluding Third Party Actions in Your Arbitration Clause

By Jeffrey T. Zaino, Esq.

Third party court actions involving a party that is also subject to the arbitration process can be problematic and create significant complications and delays for the parties to the arbitration agreement, i.e., the need to respond in the third party action in court, while being required to assert rights against the other contracting party (under the indemnity provision or otherwise) in arbitration. This can result not only in having to participate in two separate arenas and jurisdictions to address the same matter (e.g., breach of representation), but also the possibility of ultimately producing inconsistent results. It is therefore worth considering a contractual "carve out" for third party actions when drafting your arbitration clause. The following arbitration clause provides an example of one approach taken by practitioner Sidney Bluming of Meister Seelig & Fein, LLP:


(a) In the event of any dispute which arises solely between the parties hereto, arising under, relating to or in connection with this Agreement or the enforcement or interpretation of any provision hereof, or the breach or alleged breach by either party of its obligations hereunder, such dispute will be submitted to binding arbitration pursuant to the Commercial Arbitration Rules then obtaining of the American Arbitration Association, in New York, New York. The arbitration award shall be final and binding upon the parties and judgment on any award may be entered in any appropriate state or federal court within the County of New York, State of New York, or any other court of competent jurisdiction. All arbitration proceedings, and all documents, pleadings and transcripts associated therewith, shall be kept strictly confidential by all parties, their counsel and other advisors, employees, experts and all others under their reasonable control.

(b) In the event that a third party brings an action or other proceeding against either party to this Agreement or asserts a cause of action in any action or proceeding initiated by either party to this Agreement against it (a "Third Party Action"), then the party to this Agreement against which or whom such Third Party Action is brought or asserted, may in such Third Party Action, or separately in any court of competent jurisdiction, litigate any related claim which it may have against the other party to this Agreement, including, without limitation, by way of a claim, indemnity, cross-claim, counterclaim, interpleader or other third party action without being obligate to arbitrate the same as otherwise provided in Paragraph (a) hereof. In any such case, the matter which is the subject of such Third Party Action (including any related claims, indemnity, cross-claim, counterclaim, interpleader or other third party action, which either party hereto may have against the other) shall not be subject to arbitration, but shall be resolved exclusively within such Third Party Action or, at the election of the asserting party, in such separate action[, and for such purposes of inclusion in the Third Party Action, each party hereto expressly consents to the jurisdiction and venue of the court or other legal body in which such Third Party Action is pending, and in such separate action, to the jurisdiction of the designated state or federal court within the County of New York, State of New York].

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

May 21, 2014

Quick Tips for Developing Your ADR Career

By Jeffrey T. Zaino

Developing a career as an arbitrator or mediator can be very challenging. Before you consider moving into the field it is important that you talk to those arbitrators and mediators who have done it successfully. Over the years I have had the opportunity to take their counsel. The following are some of the best of their many tips regarding how to develop and sustain an ADR career:
• Compare your resume/panel card to successful neutrals.

• Keep your resume/panel card updated and fresh. ADR service providers and advocates do carefully review resumes/panel cards.

• Set a fair hourly or per diem rate. Compare your rate with others with similar backgrounds and experience. Understand what the going rate is in your region.

• Get involved in various bars associations, state and national. Do not just be a dormant member, volunteer for committees and produce. Bar associations provide a wonderful networking opportunity.

• Become active with non-bar association groups active in the field of ADR (e.g., Association for Conflict Resolution and Labor and Employment Relations Association).

• Pay your dues - volunteer your services as a neutral to develop skills and network. There are various pro bono community and court programs.

• Find multiple mentors to see and learn about different styles. Shadow your mentor not just to be educated but to network with advocates and parties.

• Practice in your backyard where parties and advocates know of you and your reputation.

• Participate in ongoing trainings and educational events to keep up on current trends/laws and to network.

• If pursuing a mediation career read, "Making Peach and Money: Economic Analysis of the Market for Mediators in Private Practice."

• Have a webpage and effectively use social media. Social media is here to stay and many new neutrals use social media to promote themselves. It is one tool used by parties and advocates to research about neutrals.

• Google yourself. If you are active in the community professionally and have a social media presence, what should appear is positive and free information about you. This is a free advertisement about you and your ADR practice.

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

• Do not get discouraged - as any successful neutral will tell you, it takes a lot of hard work and time to develop a career in this field.


May 5, 2014

Interview with New AAA Arbitrator Timothy Taylor

By Jeffrey T. Zaino, Esq.

In the interest of developing and promoting new arbitrators in New York, I offer the below Q&A of a new AAA labor arbitrator, Timothy Taylor.

Q: When did you first take an interest in alternative dispute resolution? What prompted such interest?

A. My earliest memories include finding ways to resolve disputes without the aid of the governing authorities. Growing up in a rural community in the Deep South access to the courts was non-existent. Local people had to develop a way to resolve daily conflicts in a way that strengthened relationships rather than weakened them. My interest in alternative dispute resolution grew from watching the elders in my community apply principles of fairness, justice, and equity.

While at Cornell Law School, I had the opportunity to take an intensive writing course with Professor Michael Gold of the ILR School. The assignment for that class exposed me to topics in alternative dispute resolution. My first job after graduating was with a firm representing public sector labor unions. As an attorney dealing with contract grievances, negotiating collective bargaining agreements and representing clients in arbitration proceedings as well as civil litigation, I grew to appreciate the efficiency and fairness of ADR.

Q: What past, professional and/or personal experiences, have you had that make you a better arbitrator?

A. After 25 years of litigating cases in various forums, the one thing that I remember most is that for the client this may be the only case that they have or will ever have. Because of this, they deserved the very best representation and experience possible. While the outcome mattered, the process sometimes mattered more. If I focused on each step of the process and diligently prepared and presented the case, the end result was usually just and fair. In arbitration, I have found that paying attention to the details of the process, from listening to opening statements to careful review of the evidence and thoughtfully writing the decision, results in an equally just and fair result.

Q: How do you manage an arbitration case?

A. Since every arbitration has its own procedure, the parties are responsible for highlighting the contractual provisions. In addition to the contractual provisions, it is my practice to give the representatives of the parties an opportunity to meet and discuss possible settlement. If settlement is unlikely, barring any outstanding discovery issues, the parties are responsible for presenting their case in the manner they choose, consistent with due process, as long as they are efficient and above all civil.

Q: What advice would you give new arbitrators starting off and breaking into the
profession?

A. Reread " How Arbitration Works". Be patient, write out a business plan and have a daily to-do list related to that business plan. Make sure your plan includes all aspects of ADR, and share your plan with your mentors. I would also recommend joining and participating in your local and state bar association.

Q: How do you foresee ADR - the future, say in the next 10 years?

A. In the next ten years ADR will continue to grow. Administrative agencies, in their regulatory and adjudicatory functions, will use alternative dispute resolution processes to provide due process to the public. Federal, state, and local courts will expand the use of ADR as a way to better manage their crowded dockets and provide greater access to the legal system in matters involving civil litigation. State and local governments, particularly in resolving disputes related to budgets, will continue to use it to strengthen management-union relationships. The accessibility of qualified arbitrators and mediators will help litigants in all areas save money and shorten the litigation process. Since ninety percent of civil cases settle, ADR will continue to play an important role in fostering a culture where the parties truly are heard prior to the settlement of their case. As long as ADR continues to give the parties a fair and impartial alternative without the expense and time of traditional litigation, it will continue to be the preferred method of resolving disputes.

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

AAA FIXED RATE MEDIATION PROGRAM

By Jeffrey T. Zaino, Esq.

The American Arbitration Association (AAA) will soon offer a Fixed Rate Mediation Program for commercial disputes designed to provide parties with a cost effective approach to resolving two-party disputes where claim amount(s) are $75,000.00 or less by submitting a dispute to a neutral third-party (the Mediator). Multi-party cases with claim(s) less than $75,000.00 are also eligible provided all parties agree that the mediation can conclude in one day.

Mediation will take place at a flat rate (fixed, up front disclosed cost) with expedited time frames and parties will have access to AAA

Mediators from the AAA® National Roster that agreed to participate in this program. The program will be flexible and allow parties to incorporate it into an existing AAA arbitration. The program can reduce transactional costs (time, money, emotions) while achieving an amicable resolution of the dispute. There are considerable cost savings when compared to hourly or ad-hoc Mediators.

Under the program, prompt appointment of an AAA Mediator will take place. Only mediators that have agreed in advance to serve at the fixed rate under this program will be selected. The mediations will be one day and scheduled within 30 days of the Mediator's appointment. If requested, a pre-mediation conference call with parties and Mediator can be arranged along with submission of pre-mediation statements.

Parties that mediate under this program will be charged a fixed rate of $525.00 per party which includes the Mediator's compensation. If the mediation is settled or withdrawn prior to the confirmation of the appointment of the mediator, and / or prior to the mediation conference being held, and / or prior to the submittal of pre-mediation statements, the mediator will not be compensated. The AAA nonrefundable filling fee of $200.00 will not be refunded. The mediator's compensation of $850.00 shall be refunded to the paying party(s). Parties to an AAA arbitration that mediate under this program pay the mediator's fixed rate of $850.00 which is shared equally amongst the parties.

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.

April 15, 2014

Social Media and Neutrals

By Jeffrey T. Zaino, Esq.

Some neutrals avoid social media altogether to avoid any potential conflicts of interest based upon their concern that it could later serve as a basis for vacating an arbitration award pursuant to Section 10 (a) of the Federal Arbitration Act on the grounds of "evident partiality." Being cautious on how to use social media rather than avoiding the medium is a path to consider. Many social media sites, if used correctly, offer an abundance of educational information and a forum for a neutral to effectively and professionally market their services. Social media is here to stay. Many neutrals are full-time without staffs/offices and social media is an important link to the legal community and potential clients.

If you are a neutral, especially an arbitrator, and using LinkedIn and other social media sites, you may want to make a social media disclosure before accepting appointment to a case. The following is a suggested disclosure used by AAA Arbitrator Deborah Masucci:

"I use a number of online professional networks such as LinkedIn and group email systems. I generally accept requests from other professionals to be added to my LinkedIn website but do not maintain a database of all these professional contacts and connections. LinkedIn now features endorsements, which I do not seek and have no control over who may endorse me for different skills. The existence of such links or endorsements does not indicate any depth or relationship other than an online professional connection, similar to connections in professional organizations."


The disclosure should be tailored based on your individual situation, applicable law and any rules of the sponsoring organization or agency.

Jeffrey T. Zaino, Esq., is Vice President for the Commercial Division of the American Arbitration Association in New York.