Disclosures

Because there is such limited review of arbitration decisions, it is important that the arbitrator be impartial, and that the parties know about conflicts of interest and contacts so that they can object if they wish to do so.

At the beginning of a case, the potential arbitrator should disclose a number of things so the parties can decide whether to object.  For example, AAA Commercial Rule 17 (Disclosure) states:

(a) Any person appointed or to be appointed as an arbitrator, as well as the parties and their representatives, shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives. Such obligation shall remain in effect throughout the arbitration. Failure on the part of a party or a representative to comply with the requirements of this rule may result in the waiver of the right to object to an arbitrator in accordance with Rule R-41.

(b) Upon receipt of such information from the arbitrator or another source, the AAA shall communicate the information to the parties and, if it deems it appropriate to do so, to the arbitrator and others.

(c) Disclosure of information pursuant to this Section R-17 is not an indication that the arbitrator considers that the disclosed circumstance is likely to affect impartiality or independence.

I usually have to make a number of disclosures.  I have been active in a large number of professional organizations, as my biography shows.  The result is that I know literally thousands of lawyers across the country, representing employees, unions, management, and outside the employment law context.  I am friends relations with a lot of them, on all sides.  Whenever I have a mediation or arbitration, I sometimes know the attorneys on one side or the other.  If they are from large firms, I may know several partners in different offices.  I disclose all that.

If I see one of the lawyers or a party or a witness at a professional or social gathering during the mediation or arbitration, I have to disclose that.  If I see one of their partners at a professional or social gathering during the mediation or arbitration, I disclose that.

Making disclosures is tedious, and I do not charge for them because they are the price of working as a trusted neutral.

If you do not want to get disclosures, do not choose me, or anyone else who is actively engaged in bar activities.  The positive side if getting disclosures is that you will know I am not a professional hermit, and am constantly hearing lawyers challenge each other’s ideas.  If you want a neutral who knows what is going on in the field and understands nuances, the price will be reading disclosures.

I have made as many as seven or eight sets of disclosures in a case, but no one has yet objected to my continuing participation.