Adding to Your Favourites: Expanding Your Personal Roster of Recommended Arbitrators
Most counsel seem to repeatedly recommend the same arbitrators drawn from very short lists of potential arbitrator candidates for every dispute. This article suggests ways to reliably diversify and grow those personal arbitrator rosters to better allow counsel and their clients to maximize the arbitration benefit of choosing their own decision maker by selecting one that is best for them and their dispute.
One of the many benefits of arbitration and, in fact, one of the main selling features with commercial clients, is the ability to choose your decision maker. Rather than roll the dice with the courts and end up with a judge who is not a great fit for your client or the dispute, you and opposing counsel have the ability to pick with whom you will work. Unfortunately, it seems rare that counsel actually have a lengthy roster of potential arbitrators from whom they will choose a recommended candidate. That is not to say that many arbitrators are not excellent choices for a wide variety of disputes – most are. But to actually give full effect to the “choose your own adjudicator” benefit of arbitration, counsel ought to have more than a handful of options from whom they are willing to choose. But how do you grow your arbitrator selection roster beyond the familiar suspects?
The Basics of Arbitrator Selection
Obviously, there are threshold questions regarding arbitrator selection that will start with a review of a particular arbitration clause or agreement, such as:
- what law applies and where is the seat?
- what is the language of the arbitration?
- is there any requirement for technical or subject matter experience?
- is there a requirement that the arbitrator be a member of a roster of a particular arbitral institution?
Most arbitral institutions provide guidance on how to choose arbitrators. Once any contractual requirements are satisfied, the guidance typically includes assessing whether there is subject matter or technical knowledge or industry expertise that would be beneficial, whether legal knowledge or training is necessary (usually, yes), and whether a particular arbitrator has a manageable caseload and availability. This last quality makes sense because the flexibility and timeliness benefits of arbitration might be easily squandered on delays caused by arbitrator unavailability. A reputation of being fair and equitable is also important. And, of course, diversity is increasingly a consideration. From these considerations, counsel are to identify appropriate candidates for recommendation to their client. It is here that a problem can arise.
Counsel can review databases full of lists of qualified and experienced arbitrators, but rarely would one choose to appoint someone simply because she or he appears on a list. Why? Because when a client is asking for a recommendation, it is not typical that one would recommend someone with whom they, or someone they trust, has had no experience. And, of course, the personality of an arbitrator is very important, as they will be guiding the parties through the process and listening to the parties, while demonstrating the authority and understanding to issue an enforceable award. With personality being difficult (impossible?) to assess on paper, counsel will typically recommend someone with whom they or their colleagues have had prior experience, thus limiting counsel’s exposure to the same short list of arbitrators over and over. Counsel’s roster never grows and potentially fantastic arbitrators are never given the opportunity to get on those short lists.
How to Grow Your Arbitrator Roster
Once threshold requirements are identified, the actual selection of the arbitrator is really where counsel can maximize the benefit of choosing an adjudicator. If the working list of candidates is entirely based on counsel’s own experience, it is likely far too limited to take reasonable advantage of this benefit.
Some recommend interviewing potential arbitrators. But interviewing arbitrators can be tricky, as arbitrator independence and the integrity of the arbitration process must be managed. If an interview raises risk regarding arbitrator neutrality or independence, your opponent has an easy target to disrupt proceedings or worse, the award itself once issued. This risk can be managed to some extent by having all communications with a potential candidate in writing, so that the full exchange can be disclosed to the opposing party if the candidate is put forward for consideration.
So how does counsel grow their list of potential arbitrator nominees? Here are a few suggestions:
- be critical of your current shortlist – keep an actual list (i.e. not just in your head) of arbitrators with whom you have worked, the nature of the mandate, and some comments about what made the arbitrator particularly (or not so) good.
- seek your client’s feedback about an arbitrator – asking before the award is issued may provide more critical feedback than afterwards.
- add potential arbitrator names to your roster when you are not actively looking for a candidate. When it comes time to appoint someone, you will have specific names about whom you can make further inquiries.
- seek recommendations from your wider professional circle of trusted counsel (i.e. beyond your own firm – your firm colleagues’ lists are likely markedly similar to your own) including clients, other lawyers in your practice area etc. Ask why they would recommend them. Or ask specifically for arbitrators with particular characteristics you think might be helpful.
- ask arbitrators you know and respect to recommend others with whom they have worked. Ask for descriptions of style and the practice and approach of those referred.
- when considering new arbitrators, search for articles or presentations by the potential candidates for some further insight into who they are, their leanings and their personality.
- actively seek to expand and diversify the list that you propose to a client, including with reference to rosters such as Arbitration Place’s NextGen roster and the Chartered Institute of Arbitrators New Arbitrator Program.
Identifying arbitrator candidates continues to rely on a “tried and true” methodology which can limit options and exclude excellent arbitrator candidates. Actively working to expand counsel’s arbitration candidate roster can bolster their ability to make the most of the arbitration advantage to choose the best arbitrator for the client and the dispute.
Melanie Gaston is a partner at Osler. Her practice focuses on complex commercial litigation and arbitration, with a particular emphasis on construction and energy disputes. She also regularly advises clients on matters involving insurance law, product liability, commercial leasing and municipal matters.