ACR-GNY - Ad-hoc Arbitrations and Selecting the Umpire

Home
Learn
Resolution Roundtable Blog
Ad-hoc Arbitrations and Selecting the Umpire
Add comment

Ad-hoc Arbitrations and Selecting the Umpire

Friday, March 21, 2025 9:44 AM | Anonymous

Ad Hoc Arbitration - Advantages ...

In an ad-hoc arbitration, where each party names a wing arbitrator and the two wings are supposed to name an umpire, what procedural methodology for the selection of the umpire have you found to be the most effective?

What are your thoughts?

Add comment

Comments

Saturday, March 22, 2025 5:44 PM | David W Slaughter

Generally speaking, I find ad-hoc arbitrations to be a general waste of resources and discourage them when/if I can, UNLESS the wing arbitrators are presumed to be neutral and pledge that neutrality. In circumstances where I have been identified as a "wing," I have found the selection of the "umpire" generally to be a matter of cooperation and wing collaboration.

Link • Reply
Saturday, March 22, 2025 6:08 PM | Dean John Feerick

Each Wing giving the other several names and see if there is a common name. That has worked a number of times for me in past years in a few significant matters. Sometimes even if there is not a common name one or the other wing might take a name from the other wing's list anyway, which I have seen happen in a major matter I handled for the AAA years ago. When we were about to issue our award in that matter, almost at that moment the parties reached a mediation agreement and agreed to file the award not issued, of which they were not aware of the content, in case a party breached the mediation agreement. No issue ever arose to lead to an issuance.

Link • Reply
Saturday, March 22, 2025 6:09 PM | Dean John Feerick

Each Wing giving the other several names and see if there is a common name. That has worked a number of times for me in past years in a few significant matters. Sometimes even if there is not a common name one or the other wing might take a name from the other wing's list anyway, which I have seen happen in a major matter I handled for the AAA years ago. When we were about to issue our award in that matter, almost at that moment the parties reached a mediation agreement and agreed to file the award not issued, of which they were not aware of the content, in case a party breached the mediation agreement. No issue ever arose to lead to an issuance.

Link • Reply
Saturday, March 22, 2025 6:36 PM | Alan Barinholtz

I’ve been an arbitrator for about 35 years, with the majority of my appointments the last 20 or so as the “neutral “. Having practiced in a very large metropolitan area the majority of “wings” either have a plaintiff’s bent or a defense bent as typically in a big city, you’re either a plaintiff or defense attorney. In the early days of my practice I worked as counsel for a specific insurance carrier for certain independent trucking concerns. This allowed me to represent plaintiffs for pretty much all of my career unless a conflict arose. Point is, the attorney who has played both sides of the fence is typically considered as a good neutral choice.

Link • Reply
Saturday, March 22, 2025 9:48 PM | Antonio Garcia Padilla

I tend to suggest, to start, each of us wings suggesting a number (3, 4, 5) to see if we come with common names. If we have already decided the area from which we would prefer to select, for logistical purposes, that has worked many times. something I am reluctant to do is to interview the candidates.

Link • Reply
Sunday, March 23, 2025 6:40 AM | Jim Daniels International Arbitrator in mining, oil & gas, shipbuilding.

Both wingmen each create a list of five names and ask the Parties to rank the list of ten. Each party is allowed one veto from the list. The highest score is nominated.

Link • Reply
Sunday, March 23, 2025 7:04 AM | Georges Affaki

This issue arises in almost every arbitration—whether ad hoc or institutional, contract- or treaty-based. I see no problem with an arbitrator consulting their appointer to understand the general objective criteria a party expects in the umpire. To that end, I like the LCIA’s approach, which requires a party intending to consult with a nominated co-arbitrator to disclose this transparently to the other party and the LCIA from the outset.
Complications often arise, sometimes leading to stalemates, when parties insist on approving every name considered by the co-arbitrators. This effectively reduces the co-arbitrators' role to that of mere intermediaries. In such cases, it is preferable for the parties to select the umpire directly, with the co-arbitrators only indicating whether they are comfortable with the chosen candidate. If no agreement is reached, the appointing authority or the relevant court ultimately makes the selection.
Outside this problematic scenario, when co-arbitrators are entrusted with the selection, I have encountered two approaches. The ideal scenario occurs when co-arbitrators know and trust each other. In such cases, the selection is an open discussion based on the facts of the case, the seat of arbitration, and each co-arbitrator’s prior experience with potential candidates.
The second approach, involves each co-arbitrator preparing a ranked list of suitable candidates. They then exchange their lists and reveal them simultaneously. The first candidate common to both lists is selected. If that candidate is conflicted or unavailable, the process moves to the next common name, and so on. If no common names appear, new lists are drawn.
A final, regrettable situation arises from time to time in polarized situations, typically treaty-based proceedings: a co-arbitrator may insist on considering only an umpire who shares their views on a matter of principle. This is usually easy to identify and will inevitably prompt an adjournment of the selection attempt. The parties should then be informed of the deadlock and advised to either reach an agreement themselves or seek the appointing authority’s intervention.

Link • Reply
Sunday, March 23, 2025 1:13 PM | skip short

I have had this on many occasions in contract uninsured motorist arbitrations. and have been lucky. almost if not always I have agreed with the other appointed arbitrator on the third arbitrator. which in my view speaks well of those neutrals known in the field for being fair that they are often selected as the third or neutral arbitrator.

Link • Reply
Sunday, March 23, 2025 1:48 PM | John Burritt.McArthur

I have often been a wing arbitrator tasked with with the opposing wing agreeing on a chair (and, for each of us, of course, agreeing with our respective appointing party). I developed a belief when I was still a trial lawyer representing parties in arbitration that the smartest approach in the long run was to propose (or, for the lawyer, approve and urge your client to approve) as chairs arbitrators you know are respected as neutrals and in whom you trust and have some basis to believe the other side also has accepted or used. And I tell the opposing arbitrator that that is what I'm doing and urge them to reciprocate. I also make sure to fully disclose any connection I have with my proposed chair so that there are no surprises for the other side. I also accept names from the other side as long as I have enough information to have an independent basis to trust the arbitrator. I've found that seeking a true consensus chair usually (1) avoids the waste of going through list after list with each side rejecting all of the other side's picks; (2) also avoids the loss of control entailed when the list bounces back to a provider; and (3) offers a chance to foster trust between not just the parties, but also the other wing arbitrator.

Conversely, when I've seen an opposing wing pick ringers for their side, it tells me the panel is going to be a rougher ride than it should be.

Link • Reply
Sunday, March 23, 2025 1:57 PM | Karen Mills

In most cases just discussing with the other "wing" arbitrator has resulted in a Chair we are both happy with. In others we give each other a few names/suggestions and invariably one of them is satisfactory to the other. I have never in 35 years of arbitrating had to ask a third party/appointing authority to designate the Chair.

I also wish to note that I am most disturbed by the comment by David Slaughter, below. In my many years of practice with just about every institution, and many ad hoc cases, I have always found ad hoc arbitration to be more cost and time efficient and more cooperative. Only ICSID, of all the institutions, was actually helpful. Almost every other one, except HKIAC, tried to dictate the procedure and sometimes even parr of the substance and caused considerable delay and additional cost to the parties. Ad hoc works far better as long as the arbitrators and counsel know what they are doing.

Link • Reply

Author

* Comment
Monday, March 24, 2025 10:38 AM | Robert L. Arrington

In selecting a Panel Chair if one is a wing arbitrator, there are several factors to consider, as follows: 1. Experience as an arbitrator and as a panel chairperson; 2. Subject matter expertise in the issues presented by the case; 3. Leadership ability; 4. Collegiality; and 5. Proximity to hearing locale (unless the hearing will be virtual). I have listed these in roughly descending order of importance, but no one factor predominates. All are important, in my opinion.

Link • Reply
Tuesday, March 25, 2025 10:14 PM | Dennis R. Suplee, Esq.

I dealt with a situation in which opposing counsel and I were to agree on 3 neutrals. After two rounds of striking, opposing counsel and I had not agreed on a single arbitrator. At that point, AAA announced that it would appoint the panel. My opponent and I asked AAA to hold off a bit to give us one more chance to reach agreement.

So, I said to opposing counsel, “The problem is that you and I are using the same criteria. So, if you like a candidate, I don’t. And vice versa. But I would still like to have some input in the selection of the panel rather than just leaving it up to AAA.

“So, here’s my proposal. You tell me your top 3 candidates, I’ll tell you my top 3. That’s 6.

“I get to strike one of yours; you get to strike one of mine. We’re down to 4.

“I get to select one of yours; you get to select one of mine. So, now we have 2 on the panel with 2 left.

My opponent then chimed in, “So what do we do then? Flip a coin?”

“Exactly,” was my reply.

I won the coin toss and won the case, 2-1, with the two arbitrators I selected voting my way.

Link • Reply
Friday, April 18, 2025 2:07 PM | Thomas P. Valenti

here are 3 methods some use:
1. List-and-strike method: Each wing arbitrator proposes a list of qualified candidates (typically 3-5 names), and then each side takes turns striking names until one remains. This balances input from both sides.
2. Joint interviews: The wing arbitrators jointly interview potential umpire candidates and make a collaborative decision based on agreed-upon criteria.
3. Ranked preference voting: Each wing arbitrator submits a ranked list of acceptable candidates, and the highest jointly-ranked candidate is selected.

Link • Reply
Friday, April 18, 2025 2:07 PM | Thomas P. Valenti

here are 3 methods some use:
1. List-and-strike method: Each wing arbitrator proposes a list of qualified candidates (typically 3-5 names), and then each side takes turns striking names until one remains. This balances input from both sides.
2. Joint interviews: The wing arbitrators jointly interview potential umpire candidates and make a collaborative decision based on agreed-upon criteria.
3. Ranked preference voting: Each wing arbitrator submits a ranked list of acceptable candidates, and the highest jointly-ranked candidate is selected.

Link • Reply