FRONT & CENTER: Chairing an Arbitration

Dispute Resolution Journal, Aug-Oct 2005 by Ittig, Judith B, Bayard, Michael J

The chair of an arbitration panel has a unique role. Two experienced arbitrators, who have chaired many panels and served together, outline their shared ideas about the chair's special responsibilities and obligations and how to carry them out.

We have each chaired many arbitration panels, and in one very large, multi-party case, one of us (Judith) was an arbitrator on a tribunal that the other (Mike) chaired. Mike is located in Los Angeles and Judith lives and works in Washington, D.C. Working together at a long distance from each other required special attention to case management among the three arbitrators. That experience, along with our separate work as chairs of other panels, led us to offer our perspectives on the unique role of a panel chair. This article contains our shared thinking about how to manage the responsibilities of chairing an arbitration.

The panel chair is the leader and the voice of the panel. However, the chair has no more authority than the other arbitrators do to decide the dispute. To be effective, the chair must treat the co-arbitrators with a high level of respect. The chair's job is to manage, not usurp, the authority of the other arbitrators.

What follows is our vision of how a panel chair should act from the time of appointment through the signing and delivery of the award.

Working Effectively As a Panel

Style of Arbitrating. Each arbitrator on a panel has his or her own professional style for managing the hearings. For a panel to work effectively together, there should be a congruence of styles, with agreement on how the arbitration will be conducted. For example, should the arbitrators agree to hold their questions of witnesses until after the attorneys have completed their questioning? Should they discuss the case as the hearings progress? Should the panel meet informally on a daily basis to review how the arbitration is progressing? These matters should be raised by the chair at the outset so the panel can work comfortably as a team.

Lines of Communication. If the three panel members have not arbitrated together before, and especially if they do not know each other well or at all, the chair should convene a meeting before the hearings commence, and even earlier if important pre-trial matters must be considered. One of the great benefits of serving on a panel is the trust and cooperation that develops among arbitrators. The chair should not hesitate to take the lead in making these early connections. When distance makes it unfeasible to meet in person, we contact our co-arbitrators by phone or e-mail to introduce ourselves if we haven't met before. The chair who reaches out to co-panelists sets a pattern of conduct that is much appreciated and aids the development of good working relationships.

Agenda. The preliminary hearing is the first time that the panel and the parties discuss the case together. An agenda is advisable for all preliminary hearings and the chair, as the leader of the panel, is usually the preparer. The chair should circulate the agenda to the co-arbitrators when important or complicated matters will be addressed. We like to talk to our co-arbitrators on the telephone about the agenda to see if they have any additions or suggested revisions. These discussions can reveal differences in the arbitrators' approaches that can then be addressed in advance of the hearings.

Conferencing. Today, most prehearing conferences are conducted by telephone. When there are more than two people on the line, it can be difficult to determine who is speaking. The most practical approach is to have the chair speak for the panel as a whole. Yet the chair has the responsibility to ensure that the views of the co-arbitrators are heard. The chair should arrange for the arbitrators to break away during the conference for private discussions, if necessary. The chair should elicit the co-arbitrators' comments and suggestions and find out if there are commitments that need to be accommodated when scheduling the hearings. By drawing the co-arbitrators into the discussion, the chair demonstrates that their thoughts and opinions are valued. That approach should produce active and cooperative participation throughout the arbitration.

Acting in Unison. The chair should make every effort to engage the co-arbitrators in the case so that they are fully committed to it and act cooperatively and respectfully. The chair should be sensitive to the behavior of co-arbitrators that might signal a problem. Is one arbitrator always late for the start of each day? If so, why? Are the co-arbitrators focusing on the testimony or does their attention lapse at times? Is anyone fidgeting or distracted by messages on a PDA? If so, the panel may need more short breaks in the hearing day. By observing the conduct of fellow arbitrators, the chair can make accommodations so that the parties receive the arbitrators' complete attention.

Circulate Drafts. Whenever the chair is preparing a decision or ruling for the panel, it is vital to circulate drafts for comment by the co-arbitrators. Not only does this approach bring the co-arbitrators into the decision-making, it also results in clearer, more logical decisions and rulings. Recently, one of us was called on to make an important ruling on arbitrability. The co-arbitrators' comments and revisions to the draft ruling immeasurably improved the quality and clarity of the ultimate decision. This approach allowed the panel to rule with the full confidence that it was of one view.