Prior Relationships - What are your thoughts?

| 16 Comments

How far does an arbitrator need to go to find prior relationships that, if known, should be disclosed? Is there an obligation to disclose relationships the arbitrator does not himself/herself think are disqualifying?

Please provide your thoughts/comments below.

16 Comments

Disclose everything and let the AAA case administrator and the parties determine if the prior relationship is disqualifying.

I think that you should disclose it in order to protect the arbitration even if you think it is not disqualifying. I recently disclosed that I had been an associate 40 years ago of one of the firms that appeared before me. It wasn't a problem, as I expected.

Norman Rosen

I think it's a good rule of thumb for the arbitrator to give the parties the opportunity to decide for themselves whether a prior relationship is of concern or disqualifying.

The Arbitrator/Neutral has an ultimate duty to protect the award, the process and the Association. If there is any current or past relationship (remote or not) after appropriate and diligent investigation, then disclosure is appropriate and providing advice on the neutral's observation of "no conflict" is acceptable; however, disclosure is required and the neutral should not discount this step unilaterally.

The answer to the first question is as far as reasonably possible and as to potential conflicts, the issue may be one of appearance. A non-disclosed potential conflict becomes significant beyond the actual potential of there being a conflict. The arbitrator should no more determine whether the potential conflict might be an actual conflict than the surgeon should perform surgery on himself.

Yes, all relationships, however, tenuous, should be disclosed. Harriet Derman

My rule of thumb: When in doubt, disclose.
If a court is inclined to vacate, failure of adequate disclosure provides the path.

All relationships should be disclosed, even if arbitrator doesn't think they are disqualifying. As to how far back to go, arbitrator should be maintaining a conflicts check sheet with regard to prior arbitrations. They should do a complete review of their "rolodex", including their social media first degree connections. If something should surface once the arbitration starts because the arbitrator's memory has been jogged, the arbitrator should immediately make the disclosure to the parties.

Arbitrators are supposed to dig deep and disclose anything that might pose even the smallest doubt about neutrality. Maybe not as far back as primary school, but any relationships from adulthood on seem appropriate to me. Yes, it can be a bother but it would be even more so if an aggrieved party digs up something that any reasonable person would think compromising.

I think it is up to the parties, not the arbitrator (candidate) to determine whether a prior relationship is tenuous or should be disqualifying. Sufficient disclosure should be made in each matter to give the parties the opportunity to make that judgment.On the other hand, I do not believe an arbitrator needs to do a lobotomy on all prior case files and relationships over an extended period of time, to see if a potential conflict exists. Each arbitrator has a "conflict list" and that should be routinely examined and updated.

Forgetting our legal obligation to search for possible conflicts, and to disclose, in my experience counsel and parties gain increased respect for Arbitrators who are candid.

Pat Westerkamp

The question will always answer itself. If you even have to think about it, you should disclose it.

For me, the test is not would "I" think they are disqualifying, but would a reasonable person in a similar situation think that they might be disqualifying. As is the gist of the above responses, disclose more not less....all, not almost all.

The definition of "relationships" may be fixed but the challenge is the extent to which we search for them. Previous work associations and affiliations are easily relationships to disclose. While I prefer to disclose everything (including "connections" on Linked-In) how about if I presented at an educational program at which Claimant's counsel also presented or if I was a director of the Bar organization where counsel was also a director? Even more tenuous, what if counsel & I subscribed to the same Bar or practice-related list serve? The universe of historical information we must search continues to expand.

Disclose, disclose, disclose. The best practice is to disclose every possible conflict. This returns the decision to the parties and protects the integrity of the arbitration. I recently disclosed a relationship that did not, in my opinion, create a conflict, but I was concerned about "buyer's remorse." I included a special disclosure. It read as follows: "So, while I do not have a personal relationship with Mr. XX (although I believe I have met him) and have not interacted with him in my capacity as an attorney, arbitrator or mediator, his relationship with the [name of organization I run] and my position [running the organization] may create an appearance of bias such that even if the parties initially accepted the appointment after full and complete disclosure, the parties might subsequently be inclined to view an adverse decision as biased.

IF, AFTER READING THIS DISCLOSURE, THE PARTIES AGREE TO PROCEED WITH ME AS THE ARBITRATOR, I WILL AGREE TO SERVE."

Disclose everything. At one point, I disclosed a blind date I'd had with a party over 50 years prior. No one would have known, since it was under my maiden name, but I disclosed it. No one cared. Afterwards, one of my co-arbitrators said, incredulously, "You remembered?" Yes, I remembered, so I disclosed.
Micalyn S. Harris

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This page contains a single entry by Jeffrey Zaino published on January 17, 2017 10:41 AM.

Deposition Subpoena - What are your thoughts? was the previous entry in this blog.

Arbitrators Writing Long Opinions - What are your thoughts? is the next entry in this blog.

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