ADR Services

Arbitrator Selection – Minimum Due Diligence

1. Profile the type of arbitrator you need / want, i.e. strong on law, subject matter experience, sense of equity, work ethic.

2. After selecting a short list of proposed arbitrators, insist that each proposed arbitrator make complete disclosure pursuant to CCP 1281.9 which incorporates CCP 170.1 (disclosures for judges) and California Rules of Court – Division VI (ethics for arbitrators). 

3. Be sure the disclosure includes mediations/discovery references (both past and future) with the parties, counsel and law firms and a statement as to whether or not the proposed arbitrator will accept or decline new ADR work from the parties, counsel or law firm while the arbitration is pending.

4. Check databases maintained by professional organizations and law firms and email your colleagues for real time comments and evaluations of the proposed arbitrators.

Use a Supplemental Disclosure Questionnaire

Pursuant to CCP 1281.9(a) a proposed arbitrator is required to disclose “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.”  The problem when selecting an arbitrator is how to discover such matters and facts.

Consider using a supplemental disclosure questionnaire, similar to a short form jury questionnaire, inquiring into the arbitrator’s personal background and experiences with the type of dispute at hand.  Ideally, the supplemental questionnaire would be developed jointly by opposing counsel.  Failing that, serve your questionnaire on the proposed arbitrator and the other side.  If the arbitrator fails to or refuses to answer the questionnaire, disqualify the arbitrator for failing to make disclosure under CCP 1281.9.

Arbitrator Disqualification Can Not be Waived

A party’s right to disqualify an arbitrator can not be waived.  In Azteca Construcion v. ADR Consulting the Third District Court of Appeal held that an arbitration agreement calling for American Arbitration Association (AAA) rules, making the AAA the final authority on arbitrator qualification, must yield to the arbitrator disqualification provisions of CCP 1281 et. seq.

An arbitrator must make disclosures pursuant to CCP 1281.9 within 10 days of appointment.  Any party may disqualify a neutral arbitrator within 15 days of the arbitrator’s disclosure (CCP 1281.91).  The right to disqualify is absolute, may be exercised without cause and an unlimited number of neutral arbitrators may be disqualified.

Azteca Construcion v. ADR Consulting, C045316, 2004 DJDAR 10648 (August 25, 2004)

Full text link in Word format: http://www.courtinfo.ca.gov/opinions/documents/C045316.DOC

Azteca Construcion v. ADR Consulting, C045316, 2004 DJDAR 10648 (August 25, 2004)

Full text link in PDF format: http://www.courtinfo.ca.gov/opinions/documents/C045316.PDF

Use CCP 638(a) to Insure Trial and Appellate Court Review

You and your opponent agree to arbitrate a litigated dispute and both are concerned about the lack of judicial review and the limited review standard on appeal.

Rather than dismissing the case or having the trial judge order the matter to arbitration, prepare an Order to Agreed Reference pursuant to CCP 638(a).  Your neutral is now a referee, who after conducting the hearing(s) prepares a report and recommendation to the trial judge.  Each side has the opportunity to object to the report and/or recommendations, conduct hearings on the objections and the losing party has full appellate rights.

Request a Reasoned, Interim Arbitration Award

The chances of modifying a binding arbitration award are somewhere between “slim and none”.  The review grounds set out in CCP 1286.2 (Vacation of Award) and CCP 1286.6 (Correction of Award) are very narrow and there are no post award proceedings because the arbitrator loses jurisdiction upon signing of the award.  Requesting a reasoned, interim award creates the opportunity for post-award hearings.

A reasoned award sets out the arbitrator’s factual and legal rationale for the award.  An interim award preserves the arbitrator’s jurisdiction while post arbitration matters are considered.  Most arbitrators will honor the parties’ joint request for a reasoned, interim award.

After an interim award is rendered, the parties know who the prevailing party is and can structure the appropriate request for attorney fees, if allowed by contract or statute.  The interim, reasoned award gives counsel the chance to comment on the award, either formally or informally, bringing to the arbitrator’s attention correctable errors of fact, law or reasoning.

Master the “Arts & Crafts”

“Arts & Crafts” refers to your case’s presentation details.  Attention to the look and feel of the presentation adds to its persuasive quality.  Below are 5 “arts & crafts” tips.

1. When assembling document notebooks, place the documents in advocacy order i.e. put what’s most important to telling your story first.

2. Make a “hot docs” notebook for the arbitrator.  Usually, only about 10% of the documents are significant.  Make those documents easy to find.

3. If there are 2 versions of the same document, place them behind the same tab, marking your version “A” and the other behind it “B”.

4. Use 3 inch, “D-ring” binders for documents.  Thicker binders are difficult to handle.  “D-rings” keep the pages flat and neat.

5. Use an oversize hole-punch, making the pages in your binders easier to turn.

More “Arts & Crafts”

1. Have enough copies, organized in folders and in presentation order.

2. Highlight quoted text in the base document or deposition.

3. Have an 8½ x 11 version of every blowup in the exhibit books.

4. Learn to run the ELMO, Power Point and/or other electronic presentation systems before the arbitration.  Set up early and practice in the hearing room.

5. Check your office supply kit: easels, flip-chart paper, markers, erasers, Post-its and favorite/lucky pens.