I am commonly asked what I believe is the most important issue when it comes to arbitration. For me the answer is always the same, whether we are talking about a labor arbitration, a construction dispute, or any other arbitration. The most important issue in any arbitration is the selection of the arbitrator. There are a variety of on-line resources to obtain information as to those arbitrators that are part of any panel selection process. And whatever the selection process is, make sure that it is for a limited geographic scope. Dealing with an arbitrator which you, or others who you trust, have used in the past is a significant advantage over dealing with an arbitrator you may never see again. So unless there is some overwhelming need to have a more than regional scope for selection of an arbitrator, keep it local. Once you receive the panel, again, do as much background review regarding prior decisions and others’ experiences with the selected arbitrators in similar disputes. Quite frankly, the attorney you select to assist you in the arbitration process should know the backgrounds of the vast majority, if not all, of the arbitrators on the panel.
The second most important item in any arbitration is framing the issue. An appeal is next to impossible in most arbitrations. The most likely source of an appeal will be where the arbitrator exceeds his or her authority. Hence, establishing the basis of the arbitrator’s authority should be done with a great deal of preparation. Keep the issues specific and focused. Included within the framing of the issue is the remedial aspects of the case, if a finding of fault is established during arbitration. So it is also important to limit the power and authority of the arbitrator regarding any remedial aspects of an arbitration award. Finally, while, normally, the framing of the issue is established on the record during any arbitration, in the absence of a court reporter, I strongly suggest that it be stipulated in writing and made a part of the record in that fashion.
So be wise in your selection of the arbitrator. But regardless of the ultimate outcome in that process, make sure you do not give the arbitrator too much authority that can result in a disastrous outcome if the issues are not framed in a limited fashion.