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Sole arbitrator informally consulting with colleagues - What are your thoughts?

A sole arbitrator informally consulting with colleagues about procedural issues in a case (such as interpretation/application of Commercial Rules).

What are the perimeters of permissibility?

Please provide your thoughts/comments below.

Comments (13)

Judge Andrew Peck (ret.):

If it is procedural, not substantive, I don’t see a problem with it. Judges do it.

Deanne Wilson:

For fear of being influenced by my colleagues , I would not confer with them. If I felt I needed some input on a procedural issue, I would first confer with the AAA administrator for guidance. If I obtained input different than that presented by the parties, I would present the information to the parties and request their positions.

Anonymous:

I can’t believe this question. I was just about to do that to answer this question: More than two years ago I issued an award that included attorney’s fees for service through the hearing; the prevailing party did not request or submit evidence of expected attorney’s fee for further work, such as defending the award in the trial court and on appeal, both of which were required. Now, after successfully defending the award in trial and appellate courts, the winner has filed a request for fees for that. Do I have authority to do that (or anything)? I thought this case was over.

Substantively, the arbitration agreement provided it was governed by Texas law. Texas law would not allow this for a lawsuit decided in court. It would hold that the issue was waived because the winner failed to plead for and prove up appellate attorney’s fees during the trial.

What say ye?

Anonymous:

In my view an arbitrator should feel free to consult another about a case. He/she is not going beyond the record. Rather, based upon the information provided, the advice may give insight as to the correct result. This is especially significant where the arbitrator is relatively unfamiliar with certain industry practices. We do not live in a bubble and there may be instances where reopening the record or holding conference calls between the parties is inadvisable.

Tad Decker:

I would first contact staff of the AAA about procedural issues when I had that type of question. But I believe it would be acceptable to contact another arbitrator for a consultation as long as the question was procedural in nature and did not impact my view of the substantive issues in the arbitration.

Judge Gerald Harris:

I believe an arbitrator’s first recourse would be to consult the AAA’s Handbook on Commercial Arbitration and The Guide to Best Practices in Commercial Arbitration put out by the College of Commercial Arbitrators. If still befuddled it would be permissible, in my opinion, to consult other arbitrators strictly about procedural issues.

James Bowdish:

I would hesitate to ask an arbitrator colleague not assigned to the matter about anything, procedural or substantive, regarding an ongoing arbitration. The issue should be brought to the attention of the parties, not someone else. I believe it is the arbitrator's duty to review the law submitted by the parties on both procedural and substantive matters and ask for further information from the parties if there is a question.

this is an interesting issue. The arbitrator should be knowledgeable about the subject matter of the dispute and also should only make his or her decisions based on information presented to him or her by the parties. However, I had instances where I felt that perhaps a second opinion from a colleague maybe helpful to me in making my decision. Would this be any different than "Googling" for the same information? I believe that it would be in the same category and for the same purpose. I very recently heard a retired judge state that this practice (Googling or consulting with a colleague) is common and acceptable among judges. I don't see why it shouldn't be amongst arbitrators or mediators! The ernest recommendation would be that the arbitrator should be very cognisant of the confidentiality issues and use diligent care in order to maintain the confidentiality he/she are bound by in the course of handling the matter.

An arbitrator ought to be able to consult with a colleague provided that colleague would not be disqualified from acting as an arbitrator in the matter, and maintains the same confidentiality as the arbitrator regarding the deliberative process.

Edwin H. Stern:

I would undoubtedly ask the parties for their interpretation and application of the Rules. If they agree and the position appears to be reasonable, I would undoubtedly apply that interpretation for various reasons including avoidance of an issue. If there’is disagreement, I accept what I consider to be the most appropriate interpretation consistent with whatever authority ot precedent there might be, as with any other issue.

With respect to a proceduresl issue arising under the Rules, I have also asked the case administrator or case manager who may well have dealt with the issue before, or may know of AAA policy, precedent or interpretation and can point to something that might be referred to as precedent, In any event, I would advise the parties of my intent to discuss the matter with the manager or administrator, and advise of the results in case they have comments or a reaction which could be relevant, and avoid an unnecessary issue.

William G. Bassler:

Without disclosing confidential information I would not hesitate to discuss a procedural or substantive
question of law on a critical question that was perplexing me.Provided of course, that I solicited counsel's response to anything I learned before making any decision.

My primary concern is to " get it right" without compromising in any way the confidentiality of the arbitration or the ability of counsel to weigh in on anything that wasn't already been briefed.

Paul Marrow:

Canon V (c) states: "An arbitrator should not delegate the duty to decide to another person."

When does a consultation morphs into a delegation to the person consulted with? Why find out.

If an arbitrator consults with some and during that conversation is told of a doctrine, case etc that the arbitrator is not already aware of, it could influence the outcome. Worse yet, the person consulted with may have a bias concerning the issue at hand - not the parties because a consultation should never involve disclosure of the names of the parties - an that bias could sway the arbitrator.

Think of it in these terms: You consult with Harry and before you render the decision, you tell the parties that you did this and that Harry gave you an unusual perspective on the issues and you followed his line of thinking. Think you would ever be hired again? Don't be surprised if the next time the parties hire Harry and forget your name.

Thank you to Judge Andrew Peck (ret.) for a sensible response. I have always appreciated the give and take of a three-arbitrator panel. As sole arbitrators, we are responsible for making reasoned decisions and maintaining confidentiality. When a case represents an unusual or complex issue, we make better decisions when we consult with our colleagues, whether directly or indirectly (for example, by reading this forum). As long as we protect the confidentiality of the proceedings we are improving the process when we consult with colleagues on challenging issues.

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This page contains a single entry from the blog posted on November 10, 2018 2:58 PM.

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