Characteristics of an Effective Arbitrator

In my 30-plus years as a lawyer, I have had a number of different roles (federal district court law clerk, big firm associate and partner, judge, and professor), and, of late, I have added arbitrator to the portfolio. As one my father’s fishing buddies once said to him – “your boy seems to have a hard time keeping a job.” My father’s deadpan response was, “yes, he has been a bit of a problem.” For my full bio, please see my LinkedIn profile, my law firm’s website, and our Vimeo page.

As a United States Magistrate Judge, I presided as the trial judge over civil jury and bench trials, with appeals directly to the Sixth Circuit. In my last two years in that role, I tried as many civil cases as some of the District Judges in the district in which I served. In private practice, I have led large and small litigation teams in arbitrations and in trials (jury and bench) throughout the United States and internationally. Those experiences inform my views about effective arbitrators.

The Ability to Make Decisions

More than anything else, what makes an arbitrator effective is the ability to make decisions. Out of law school, I clerked for an outstanding federal trial judge, David D. Dowd, Jr., a trial lawyer at heart. He taught me that a trial judge’s job is “to call balls and strikes” and to move on. Judge Dowd was right. Based on my own experience, there is nothing more frustrating than a judge or arbitrator who cannot make a decision.

I have heard more than once from judges and arbitrators alike, “if the parties cannot agree on this issue, I am going to have to decide, and no one will be happy.” No kidding. That is precisely the arbitrator’s job, to make decisions. An effective arbitrator should apply the facts to the law, decide the matter, and enter an appropriate award. In contrast, when an arbitrator delays a decision, that results in additional costs and a deep sense of frustration for the parties and counsel.

It is not the role of the arbitrator to negotiate with parties who are at an impasse. An arbitrator should work to determine the most efficient route, but if the parties are at loggerheads, and a decision needs to be made, then the effective arbitrator does just that. I have lived through that situation many times and have often heard my colleagues complain privately about the judge or arbitrator – “just make a decision – we may not like it, but we know where we stand.”

A Straightforward Formula

A straightforward formula for making informed, timely decisions in an arbitration matter is as follows.

First, an arbitrator must be prepared. That should be obvious, but a lack of preparation happens more than one would expect, and survey data reflects the same. If an arbitrator starts off the proceedings with, “so, tell me about your case,” that may be cause for concern. An effective arbitrator should do the “homework” in advance, by reading, studying, and analyzing the pre-hearing materials, in order to hit the ground running. An arbitrator’s pre-hearing preparation should inform questions to counsel at the outset, e.g., at a preliminary hearing or proceeding.

Second, an effective arbitrator must adhere to the arbitration agreement to determine the scope of arbitral matters and, with regard to what is easily the most expensive part of any adversarial proceeding, discovery. This may seem obvious as well, but in the heat of an arbitration, the parties and counsel are at risk of losing sight of what they agreed to prior to the arbitration. A realistic discovery plan, taking into account the written agreement and any applicable rules, is essential to achieving the overriding principle of arbitration – containing the costs of the dispute.

Third, a realistic schedule, created with the parties’ input and agreement, and actively managed and enforced by the arbitrator, is critical. While there are always circumstances that justify a continuance (e.g., a family emergency or the like), the schedule is important and should be locked in by the arbitrator, counsel, and the parties. But if the parties are in agreement, and in their judgment a change is warranted, an effective arbitrator will take heed and work with the parties to adjust the schedule.

Fourth, virtual tools are helpful for certain aspects of a matter (e.g., preliminary proceedings and the like) and the final hearing (witness appearing remotely to save on costs). At the same time, in-person sessions by the arbitrator allow the arbitrator to evaluate the evidence, the veracity of witnesses, and arguments of counsel in a way that virtual tools cannot match. An effective arbitrator recognizes that travel and in-person presence are essential to the arbitrator’s role.

An Effective Arbitrator’s Job is Not to be Counsels’ “Friend”

I recognize that for some in the arbitration space, this might be the most controversial view that I espouse. That said, an effective arbitrator should not be concerned with or motivated about being counsels’ “friend” during a matter in the hope of being selected again by them in the future. To be blunt, arbitrators should not be “hustling” business in a “current” arbitration in the hopes of making everyone happy to secure future work without regard to personal interests. I have experienced this firsthand, and it is frustrating and contrary to the principle of a resolution of a matter by a true neutral. If an effective arbitrator does a good job, the referrals and future selections should come naturally. It should not come from being everyone’s “buddy,” or perpetuating a “clique” – “you scratch my back I will scratch yours” mentality.

The good news, as a close colleague of mine advises, is that most competent counsel will choose or recommend that their client choose an arbitrator that counsel believes to be neutral, prepared, and principled over gambling on the chance of a better relationship with the arbitrator, that a friendship will make a difference in the end, or that the arbitrator will not see the other side as the better business development opportunity. 

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I am sure that others in the profession may differ about what makes an effective arbitrator or have other helpful suggestions. I offer my views on the subject, and my emphasis on the foregoing points, based on my own experiences as a lawyer, judge, and arbitrator. The role of an arbitrator is critical, and as the authors of a piece on effective arbitration suggest, “It is often said that arbitration is only as good as the arbitrator[].” Effective management of arbitration – the importance of involving in-house counsel, Financier Worldwide, May 2020.

I agree. And, as my father would say, “That’s my story, and I’m sticking to it.”

The views expressed in this article are solely those of the author.