« Like Thanksgiving and Black Friday, Truisms About Arbitration (That Aren't True) | Main | Arbitrators Discussing Mediation - What are your thoughts? »

Arbitrators Serving as Consultants - What are your thoughts?

Should an arbitrator serve as an arbitration consultant to a party that was previously before her/him in an unrelated arbitration matter? If yes, how soon after the previous case would you deem this to be acceptable? Please provide your thoughts/comments below.

Comments (7)

As an ADR consultant, the "don't do it" part of my brain is firing away on this one. The concern I have is the appearance that there was a quid pro quo for my service as arbitrator, as in "How interesting! Friedman rendered an award in their favor, and now they have retained him as a consultant?

On ethical quandaries, I teach my students at Fordham Law as follows: 1) consult applicable ethical codes and guides; 2) if in doubt, don't do it; 3) if STILL in doubt, imagine your conduct is the subject of a story in the news, and your kids/priest/minister/rabbi/imam/ or worse - your Mom, call and ask why you did it.

So, let's look at he Code of Ethics for Commercial Arbitrators. Canon I(C) says: "After accepting appointment and while serving as an arbitrator, a person should avoid entering into any business, professional,or personal relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality. For a reasonable period of time after the decision of a case, persons who have served as arbitrators should avoid entering into any such relationship, or acquiring any such interest, in circumstances which
might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of
the relationship or interest."

Summing up: I wouldn't do it. My Mom still scares me!

Judge William G. Bassler :

I probably wouldn't do it if a year hasn't gone by.
I don't know what constitutes a a reasonable period of time but at least a year passes "the smell test" I think. The year at least satisfies my concern about the " appearance of impartiality".

After a year I would lay it out to the parties.It's their call.

Bill Bassler

John Dewey Watson:

As my mentor, Bill Eldredge, advised over 40 years ago, "If you have to ask, 'should I do something,' the answer is, 'no.'"

David Blair:

"Consulting" is getting paid privately by a past or future arbitration party. The concept is poisonous to neutrality. It's a no brainier. Don't!

I agree with the group and in particular the points of George Friedman. In general, arbitrators have to preserve neutrality and the appearance of impartiality at practically all costs.

Though I have served as an Arbitration consultant I have not and would not provide that service to a party or attorney that has appeared before me in an arbitration.

David H Pfeffer:

I simply would not do it. It does not, in my view, pass the "smell" test. Whether true or not, the opposing party who lost in the initial arbitration is likely to make reputation damaging comments that I would prefer to avoid.
David H. Pfeffer

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

About

This page contains a single entry from the blog posted on December 1, 2015 8:56 AM.

The previous post in this blog was Like Thanksgiving and Black Friday, Truisms About Arbitration (That Aren't True).

The next post in this blog is Arbitrators Discussing Mediation - What are your thoughts?.

Many more can be found on the main index page or by looking through the archives.