Something's Rotten in the State of Party-Appointed Arbitration: Healing ADR's Black Eye that is "Nonneutral Neutrals"

Authors

Seth H. Lieberman, Benjamin N. Cardozo School of Law

Abstract

This Note will first explore the history of arbitration, particularly within the United States. It will predominantly examine the traditional definitions of arbitrators and any consistencies throughout the various differences of arbitrator definitions. Second, this Note will investigate the traditional definitions of and roles played by advocates in traditional litigation and alternative dispute resolution. It will contrast advocates with party-appointed arbitrators, particularly focusing on their history, reasons for their creation, and their intended purpose.

Third, this Note will investigate the characteristics of modern party-appointed arbitrators, focusing on what scholars and parties regard as their expected behavior in a tripartite arbitration. It will examine how various dispute resolution providers, including the American Arbitration Association ("AAA"), JAMS (formerly Judicial Arbitration Mediation Services and JAMS/Endispute), and the Center for Public Resources Institute for Dispute Resolution ("CPR") have incorporated the party-appointed arbitrator model into their respective rules and ethical guidelines, and how the Code of Ethics confronts party-appointed arbitrators' behavior and ex parte communication before and during the arbitration. This Note will also investigate how various courts have discussed, fumbled, and often contradicted each other in their attempts to reconcile and eventually pinpoint appropriate party-appointed arbitrator behavior. Fourth, this Note will reveal varying arbitrators' expectations regarding the role played by party-appointed arbitrators. This revelation will demonstrate how the problematic state of definitional inconsistencies might sacrifice the legitimacy of the party-appointed process.

Finally, this Note will propose that party-appointed arbitrators should be properly labeled as party-appointed advocates to ensure expectational symmetry among participants in party-appointed arbitrations. By confronting possible detractors of this suggestion, including those scholars who assert that the recent revision to the Code of Ethics will sufficiently ensure consistency among tripartite participants' expectations of party-appointed arbitrator behavior, this Note supports the presumption that changing the term is necessary to accurately reflect party, arbitrator, and judicial expectations.

Disciplines

Dispute Resolution and Arbitration | International Law | Law

Recommended Citation

Seth H. Lieberman, Something's Rotten in the State of Party-Appointed Arbitration: Healing ADR's Black Eye that is "Nonneutral Neutrals", 5 Cardozo J. Conflict Resol. 215 (2004).
Available at: https://larc.cardozo.yu.edu/cjcr/vol5/iss2/12