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Protocols of Communication with Non-Neutral Arbitrators - What are your thoughts?

What protocols of communication within a panel, and by the panel to the advocates prior to the close of testimony, should govern a panel where the wing chairs are party-appointed and non-neutral?

Please provide your thoughts/comments below.

Comments (8)

Judge Gerald Harris:

In my limited experience with such panels the protocol I have adopted is to have non-neutral arbitrators refrain from communication with the appointing party once the hearing has commenced and to avoid ex parte communications between a non-neutral and the Chair.

In the US, under the Code of Ethics for Arbitrators in Commercial Disputes, Canon X arbitrators may not communicate orally with the neutral arbitrator concerning any matter or issue arising or expected to arise in the arbitration in the absence of the other Canon X arbitrator. When Canon X arbitrators communicate in writing with the neutral arbitrator, they must simultaneously provide a copy of the written communication to the other Canon X arbitrator. Under Canon VI(c), which applies to Canon X arbitrators, arbitrators may not leak panel deliberations or draft panel rulings to counsel for their appointing party ( Nw. Nat'l Ins. Co. v. Insco, Ltd., 2011 WL 4552997, at *6 (S.D.N.Y. Oct. 3, 2011)).

Outside the US, party-appointed arbitrators generally must serve as neutrals. They should take care to discuss the merits only when all three are present.

A party-appointed arbitrator must take the same oath as the non-party appointed arbitrator, and should be governed by the same rules as arbitrators in general. Being appointed by a party does not make the arbitrator an advocate or coach for the party which appointed him/her.

William G. Bassler:

I do not know of any protocol. In my experience all communications among the Tribunal are shared with each other as a matter of common courtesy and common sense.

As Chair when I am authorized to communicate with counsel I send a draft of the proposed communication to my colleagues for review, comment and approval.

We are a neutral organization at the AAA, so I have always abided by the principle that communications from the chair of an arbitration panel to the parties should be joint, clear, and never ex parte.

I don't believe the principle of neutrality should or must be abandoned where the wing chairs are party-appointed and non-neutral. The neutral chair must take all factors into account.

Discussions/communications among the panel concerning discovery, depositions, and third-party subpoenas are process driven. Party-appointed neutrals provide a value to the process, not only to substantive but also, in some situations specific, situational expertise. The neutral chair has a special responsibility to control the conversation among the arbitrators. This brings in our mediator skills into the mix - listen to the non-neutral arbitrators, work towards a collective decision, but don't be afraid of making a decision that is best for the parties in the arbitration. We promise a process that is neutral, even with party-appointed arbitrators. The professional responsibility falls upon the neutral chair to make this work.

Many of the Panels that I have sat on are exactly like this, i.e. two non-neutral wings and a neutral Umpire ( this is most common in insurance related arbitrations).In those instances where the wings are non-neutral, the wings do communicate with their appointing party's counsel, ex parte, up until the submission of briefs before the Hearing ( or up until the submission of briefs on a dispositive motion). Once the briefs are submitted ex parte communications are prohibited.

In terms of communication with the Umpire and among the panel members, it is no different than a "regular all-neutral" arbitration. The same protocols apply.

David Hyland:

The answer depends, to some extent, on the forum. Where there is an established tripartite arbitration process under a collective bargaining agreement and the parties directly select a neutral or a panel of neutrals, they should be transparent and in clear agreement on what they seek and expect from the neutral. On some matters, the agreement's terms are clear and control the process regardless of any contrary agreement between party-appointed panelists. Ex parte conversations are never proper even where party-appointed panelists attempt to sanction it. The neutral appointee always bears a burden to enforce the parties' agreement and the integrity and fairness of the process.

Robert E. Barras:

Great commentary from all. Thanks to Resolution Roundtable!

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