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Sunday, December 15, 2013

When Parties Agree, Should the Arbitrator Do What the Parties Want?

Parties whose dispute is in arbitration often disagree on the process the arbitrator should follow to resolve the dispute.  But suppose the parties agree.  Does the arbitrator have to use the process the parties want? 

This important topic is highlighted by Barbara Reeves Neal a JAMS Arbitrator.  She rightly points that two or more of these principles can come into conflict:

  1. Arbitration is a delegated and defined power to make certain types of decisions in certain prescribed ways.
  2. The arbitrator’s powers derive from parties’ contract; the arbitrator is not entitled to do anything unauthorized by parties.
  3. The arbitrator has an obligation to the process of arbitration itself and must preserve the integrity and fairness of the process, while advancing the fair and efficient resolution of matters submitted for decision.
  4. It is the duty of the arbitrator to ensure a timely resolution and that the counsel and the parties understand the time and cost implications of potential time delays or adjournment they seek.
  5. The arbitrator should set meaningful limitations in order to preserve the efficiency and integrity of the arbitration process.
In fact, it is likely that the first two principles (party autonomy) will occasionally conflict with the last three principles which relate to the arbitrator's desire to have a good arbitration process ("integrity" "fairness" "timely" "efficiency").

If the parties agree that they want an arbitration with more discovery than the arbitrator thinks wise, or more continuances than the arbitrator thinks wise, should the arbitrator grant the parties' joint requests?  Generally, yes, in my view.   Arbitrator Barbara Reeves Neal's views are here.

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