Due Diligence in Arbitrator Selection: Using Interviews and Written "Voir Dire"
Aiken, Jeffrey P., Dispute Resolution Journal
One should never select an arbitrator out of the air. This article discusses the necessity for due diligence in arbitrator selection and how to go about it.
Trial lawyers have helped create a cottage industry of jury consultants who, for considerable fees, assist them in identifying jurors who have either an inherent bias1 against certain matters or a leaning in favor of others. "Voir dire" is the name of the process of questioning prospective jurors to determine if they should be disqualified either for bias or for another reason using one of counsel's peremptory challenges.2 The objective of voir dire is to select jurors who are most inclined to find in favor of one's client and eliminate those who are predisposed to finding against the client.
If lawyers could engage in this process to select the judge hearing the case, they would. The good news is that they can engage in a kind of voir dire before selecting the arbitrators and they should.
Judge Richard Posner has observed that judges sometimes make decisions based not on legalistic methods, but on other factors:
[L]egal uncertainty ... creates the open area in which the orthodox (the legalist) methods of analysis yield unsatisfactory and sometimes no conclusions, thereby allowing or even dictating that emotion, personality, policy intuitions, ideology, politics, background and experience will determine the judge's decision.3 (Emphasis added)
If law were logical, "good judgment" would not be an admired quality in judges.4 But good judgment is an admired quality in a judge. It entails, in the words of Judge Posner, "a compound of empathy, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a national sense of reality and common sense."5
Parties also want good judgment in an arbitrator. It may even be more important due to the arbitrator's role as finder of fact and law, the finality of arbitration awards, and the limited grounds for an appeal.6 The arbitrator biographies made available by most established arbitration provider organizations generally are insufficient to make one of the most important decisions in the arbitration process-arbitrator selection. Consequently, it is essential to conduct a due diligence investigation to try to learn the predilections of the candidates for the position of the arbitrator. Indeed, it is difficult to imagine why one would not research each potential arbitrator under consideration.
The American Arbitration Association (AAA) and other arbitration organizations have tried to raise the level of training of arbitrators. Nevertheless, there is a wide range of opinion on arbitrator abilities.
In addition, arbitrators hold a wide range of views on matters that could have an impact on counsel's arbitration strategy and case presentation. For example, some believe in limiting witnesses to only those disclosed in a pre-hearing witness list, while others are more flexible, recognizing that arbitration presents a more fluid process where it is not always known what opposing witnesses will say-especially when depositions are permitted or held to a minimum.
Arbitrators also have equitable powers not available to judges.7 That is because in the United States, unless restricted by arbitration rules or the agreement of the parties, an arbitrator may consider or base a decision on equitable principles.8
What may not be as well known is that arbitration has had its foundation in equity going back to ancient times. The fundamental distinction between arbitration and litigation has been stated in various ways but all essentially the same. In 320 B.C., Aristotle wrote, "The arbitrator looks to what is equitable, the judge to what is law; and it was for this purpose that arbitration was introduced, namely, that equity might prevail."9
Commenting on Aristotle, Martin Domke is quoted as saying, "Equity is justice in that it goes beyond the written law. …