Arbitration is a dispute resolution method allowing parties to resolve their disputes outside the court system. It has benefits over litigation, including less expensive fees and shorter time frames.
Choosing the right arbitration service provider is essential for parties involved in a dispute. There are many factors to consider, such as experience, expertise, and fees.
Experience
Arbitration is a standard means of dispute resolution, often used in commercial transactions. However, it also can be used in disputes between public agencies, private entities, and individuals. In these instances, parties must look at the arbitrator’s experience before deciding which one to select.
You want an arbitrator with substantial experience in the law governing your dispute. For example, suppose your case involves an employment or labor law issue. In that case, you’d want an arbitrator who has been a judge or attorney in those areas for a significant amount of time.
Another important consideration is whether an arbitrator has industry knowledge and expertise. This is especially important if your dispute concerns a specific field, such as construction or intellectual property issues.
For example, suppose you’re in a dispute with a mobile phone company over using coding language that infringes on your intellectual property rights. In that case, you want an arbitrator who understands patent and copyright law and has experience working with software companies. Some providers provide this information by listing an arbitrator’s background and professional experience on their website.
Reputation
FINRA arbitration service providers are large and small, for-profit and not-for-profit organizations that develop arbitration rules, provide lists of arbitrators to be selected by the parties, and ‘to some extent’ administer the arbitrations. The largest service providers (such as the AAA and JAMS) are well established, have a national and sometimes international presence, have specialized panels of arbitrators, extensive staff of administrators, and provide training and education for their arbitrators.
The larger institutions are also widely recognized and have reputations for being dependable. Nonetheless, many interviewees expressed a willingness to use lesser-known institutions, including newer or smaller ones, if the institution can offer them a wider pool of qualified arbitrators. The caveat is being able to sort through the “noise” to find the true experts in handling FINRA arbitration cases to ensure a fair resolution. A seasoned professional possesses invaluable expertise and can help with navigating the complexities of FINRA regulations.
The arbitrators that parties select for their arbitrations must be trained and experienced in managing arbitrations reasonably and efficiently. They should have a good understanding of the substantive law in the dispute and be familiar with the best practices in managing discovery, for example. One of the key themes that emerged in the interviews was a concern that, taken to an extreme, arbitration had become overly formalistic, depriving parties of the efficiencies they expected when they agreed to arbitration clauses in their contracts.
Expertise
When arbitration clauses are placed in contracts, consumers and employees give up their right to a court trial and any formal protections that come with it. Instead, these parties rely on the arbitrators’ neutrality, expertise, and fairness to get them a just result in their disputes.
However, parties must choose an ADR provider with the appropriate expertise level. For example, an arbitrator with deep technical experience in a particular industry can help avoid the cost and delay of educating a judge or jury on a highly complex case in that industry.
Some ADR providers allow their rosters or specialized panels to be publicly available online so parties can research potential candidates. Some also offer free or low-cost webinars where prospective arbitrators can discuss their approach to a particular dispute. Increasing the availability of information about arbitration practitioners and their qualifications can facilitate a more efficient, effective, and fairer dispute resolution process. It can also enhance public perceptions of the fairness of arbitration as a process for resolving disputes.
Fees
The arbitration process can be expensive. Therefore, companies need to consider the costs of their chosen institution before including an arbitration clause in their contracts.
While corporations can craft their arbitration procedures, many choose to incorporate by reference the rules of a well-established arbitration service provider such as the American Arbitration Association (AAA) or JAMS. These organizations administer the arbitration and provide lists of arbitrators for parties to select from and hearing rooms in various locations. They also have established reputations and are subject to public scrutiny, giving legitimacy to the arbitration process.
When selecting arbitrators, parties must use criteria that do not unintentionally exclude a class of potential neutrals. Additionally, when picking a seat, parties should ensure that the location of the seat is consistent with the law governing their arbitration agreement and has no implications on the enforcement of an award. ARS offers a reasonable way for businesses to resolve disagreements, particularly with outstanding claims and receivables that can significantly impact a business’s financial health.
Accessibility
Since arbitration clauses are now ubiquitous in contracts from large companies to Starbucks gift cards, arbitrators must reflect the diversity of people using these procedures. For this reason, choosing an arbitral institution that provides a diverse slate of candidates for appointments is advisable.
However, the challenge for a provider of arbitrators is that they need to control who is ultimately selected to hear cases. Instead, they typically provide parties with a standard ten- or twelve-candidate list from which the parties confidentially strike arbitrators and rank them. The arbitral institution then selects the best arbitrator from the remaining candidates.
Many interviewees indicated they would be willing to pay for the services of a less well-known arbitral institution or set of rules if it meant greater access to more diverse arbitrators. Similarly, several respondents said they would be willing to do without specific procedural requirements – such as unlimited length of written submissions and oral hearings on procedural issues – in exchange for lower fees or speedier case management.
