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Wing Arbitrators - What are your thoughts?

What do you think is the proper role for a neutral wing arbitrator on a tribunal? Does your answer differ if the wing arbitrator is party appointed?

Please provide your thoughts/comments below.

Comments (13)

Anonymous:

Party appointed wing arbitrators are a bad idea especially when they start advocating for the party appointing them. For that reason, they should not be called “neutrals”, as a majority of them, are anything but that.

David Blair:

The panel chair runs the case - discovery, procedure, most motions, evidentiary standards - and the wings come alive at deliberations with full participation & equal voice & vote. Nonneutral wings are a waste of time & money.

Jose W Cartagena:

Lack of neutrality of any arbitrator, even if party appointed, is grounds to vacate an award. On appointment, the appointing authority (or the other arbitrators) should warn the panel of this fact and arbitrators should also be aware of the fact that, in the event an award is overturned for their lack of neutrality, they would be personally liable for their misconduct.
If, in fact, party appointed arbitrators do turn into advocates for the party that appointed them, then the decision is made by the chairman. This being so, why then spend all the money on two arbitrators if they do not really decide the dispute?

William G. Bassler:

Neutral wing party appointed arbitrators serve a very useful purpose. In my experience they insure that the position of the party appointing them is fully understood and evaluated. As Chairman I have not found them to be advocates.
In addition, they serve to support party autonomy and participation in the arbitration process.
The consensus of the Panel in the procedure leading to the hearing often leads to a better result.
My problem is cost. Where the stakes are high, a panel of three is critical.Where the stakes are not high, a panel adds unnecessarily to the expense.

The whole idea of a party-appointed arbitrator seems to me to violate the whole premise of arbitration - the use of neutrals who have no connection with either party.
Think of all the forms we have to fill out prior to appointment detailing even the smallest connection we have to either party, attorneys, witnesses, experts, etc. To me, that alone would disqualify most party-appointed arbitrators.

In Rhode Island almost the only time three arbitrators are used is when there is one neutral and two party-appointed arbitrators. In many instances there is a lack of clarity as to the role of the party-appointed arbitrators and whether they may communicate with "their" side once the arbitration has begun. Not infrequently, one party-appointed arbitrator sees their obligation as giving "their side" the benefit of the doubt while the other may try to be completely neutral. The result is an unfair forum. The problem is not so much who gets to appoint the arbitrators, (often the parties choose them through a striking process), as is the absence of clear direction to all that all three arbitrators are obliged to be completely neutral.

Stephen A. Hochman:

There is never a need for party appointed arbitrators in domestic arbitrations. One good arbitrator who will agree to decide based on applicable law and give a reasoned award is ideal, but in a big case (e.g., over $1 million), a panel of 3 neutrals, selected by the strike and rank method, is an acceptable alternative.

Edd Dreyfus:

Role of wing arbitrator:

Remain a neutral arbitrator throughout proceedings.

Assist the chair in managing the arbitration by expressing my views on procedural issues and rulings on motions, and drafting proposed panel communications when requested by the chair.

Read and understand all docu,emts filed in the case in order to fully understand the parties positions, requests, motions, and oppositions thereto.

Deliberate with the panel members so that the panel can resolve, decide, and rule on motions, etc. and timely issue orders.

During the hearing give the chair (at breaks) my views about procedural issues that may be more efficiently or effectively handled.

Direct your attention to testimony, questions and answers, gage the veracity of each witness, and take notes that shall assist in your decision and deliberation with panel members.

Post-hearing study all transcripts, exhibits and briefs and deliberate with panel members to reach a consensious on findings and conclusions and final awards and actions.

Remain neutral arbitrator to final award issue.

I think the Chair needs to set the table and let the wings know from the start of the arbitration that their thoughts and opinions are just as important as that of the Chair. While the Chair usually handles discovery issues, and procedural issues during the Hearing, the Chair should actively solicit the wing arbitrators' views and try to create consensus.

I agree with the comments re cost, but many arbitration agreements call for three arbitrators and it is important that the parties contractual intentions not be cast aside.

When there are two party selected arbitrators involved it is important that they spend the time and diligence to select a Chair that who will work to bring about consensus; who will be truly open and neutral and will be considerate of the wings' opinions.

I agree with the comments above of Edd Dreyfus.

Robert E. Barras:

The previous 8 comments raise more questions than answer. Edd Dreyfus' list for wing arbitrators is good for all neutrals t0 keep in mind. That list if followed seems to result in a panel of 4 rather than 3.

Stanley Sklar:

Sorry to be "late" with my comments. My personal philosophy is to ask all members of the prospective Panel if they are Article X Arbitrators. Under Canons of Ethics, if a panelist declares he or she is non neutral as required by the Canons, I will decline the assignment. I just feel that I have to be free to discuss issues with my fellow Panelists without fear that conversations or comments will somehow be shared with the party who appointed them.

Thomas Decker:

Three person panels are helpful in more complex litigation matters. I have served on numerous panels where the parties each pick one arbitrator and the chairman is picked either by the parties, the selected arbitrators or the AAA. In most instances all the arbitrators have remained completely neutral. In a few instances, it seemed as if one of the selected arbitrators felt that it was his duty to make sure that the other 2 of us understood the arguments of the party who selected him or her.

For that reason I would prefer to see all of the arbitrators to be selected by both counsels or the Association.

Thomas Decker:

Three person panels are helpful in more complex litigation matters. I have served on numerous panels where the parties each pick one arbitrator and the chairman is picked either by the parties, the selected arbitrators or the AAA. In most instances all the arbitrators have remained completely neutral. In a few instances, it seemed as if one of the selected arbitrators felt that it was his duty to make sure that the other 2 of us understood the arguments of the party who selected him or her.

For that reason I would prefer to see all of the arbitrators to be selected by both counsels or the Association.

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This page contains a single entry from the blog posted on July 10, 2017 8:02 PM.

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