Menu
Log in
Forgot password

Association for Conflict Resolution - Greater New York Chapter↑

Search
Log in
Forgot password

Arbitrator Authority

Friday, April 18, 2025 1:39 PM | Anonymous

Elevator Speech ...

If in the course of an arbitration hearing the evidence shows that there is an open and shut statutory defense to the claim which would warrant dismissal, but the Respondent has completely ignored it, should the arbitrator raise the issue? 

What are your thoughts?


Comments

  • Friday, April 18, 2025 1:55 PM | Craig Nierman
    Not generally as defenses are waivable.
    Link  •  Reply
  • Friday, April 18, 2025 1:56 PM | Rick Mahrle
    I have been confronted with this situation both in a mediation and arbitration. It presents a very difficult situation in either setting. In a mediation where there was a clear statutory defense, I did raise the question with the claimant to see if the issue had been considered. In the arbitration, I decided I needed to let the issue go. It is not my responsibility to try to the matter for the parties.
    Link  •  Reply
    • Friday, April 18, 2025 2:02 PM | Anonymous
      I agree with the arbitration answer. We are sitting as arbitrators, not attorneys. I try not to spoon feed the attorneys. I may ask a question if the testimony or doc presented is unclear to me, for clarity purposes only. But, I would not lead the attorneys. If you lead one side you’ve potentially exposed yourself to a partiality claim.
      Link  •  Reply
  • Friday, April 18, 2025 2:02 PM | Charles H. Barr
    The answer depends on whether the defense is subject to waiver. If it is--e.g., limitations--the arbitrator would be advocating for Respondent by raising it. If it isn't subject to waiver--e.g., the case presents an issue beyond the arbitrator's jurisdiction--then the arbitrator's duty to raise it is coincident with the arbitrator's duty to follow the law.
    Link  •  Reply
    • Friday, April 18, 2025 2:06 PM | Elliot B. Platt
      This seems akin to the arbitrator doing his or her own research. And it could be that the party chose to waive the defense for whatever reason. And if it's malpractice, it's malpractice.
      Link  •  Reply
      • Friday, April 18, 2025 3:16 PM | DAC
        I have the same thoughts.
        Link  •  Reply
    • Friday, April 18, 2025 4:15 PM | Marcia Augsburger
      I agree. While I am sensitive to the concerns raised by others, I believe the answer depends on the issue. For example, in California if a corporation is not represented by an attorney and the arbitrator does not identify this as a problem in a pending arbitration, any resulting award is likely void. That would not serve either party to the arbitration.
      Link  •  Reply
  • Friday, April 18, 2025 2:04 PM | Richard Beens
    I have had this arise on a couple of occasions. If it is binding statutory law, I believe it should be raised. It would be wrong to ignore binding law just because counsel is not competent. No Court judge would ignore binding law and neither should arbitrators.
    Link  •  Reply
  • Friday, April 18, 2025 2:06 PM | Henry Parr
    As an arbitrator, I would not assist a party by raising a defense that the party has not raised.
    Link  •  Reply
  • Friday, April 18, 2025 2:10 PM | Carlos E. Alfaro
    No. An arbitrator is not a judge. The parties are in control of the procedure
    Link  •  Reply
  • Friday, April 18, 2025 2:10 PM | Thomas P. Valenti
    According to best practices outlined in the AAA Arbitrator Reference Manual and the Code of Ethics for Arbitrators in Commercial Disputes​, an arbitrator’s role is to resolve only the disputes that the parties have submitted for arbitration. Importantly:

    1) An arbitrator's authority is limited to what the parties have conferred: This principle is core to arbitration. Arbitrators generally should not go beyond the scope of what the parties have raised unless empowered by the arbitration rules or agreement.

    2) Due process and fairness are paramount: Injecting a new legal theory or defense that neither party has raised could raise serious fairness concerns, especially if one side hasn’t had the chance to respond or prepare a rebuttal.
    Link  •  Reply
    • Friday, April 18, 2025 2:18 PM | Thomas Heald
      I believe it is appropriate to raise the issue in the form of a question but give both parties the opportunity to comment and argue it .
      Link  •  Reply
    • Friday, April 18, 2025 8:04 PM | Mel Simburg
      Raising an issue related to application of a statute is not going beyond the dispute presented by the parties. The arbitrator should follow the law. If it is apparent to the arbitrator that the matter might be controlled by a statute, I think it is appropriate for the arbitrator to ask the attorneys jointly whether the specific statute is applicable or not.
      Link  •  Reply
  • Friday, April 18, 2025 2:18 PM | Mark Alcott
    Yes, the arbitrator should raise it during the hearing and if necessary get the parties to brief it.
    Link  •  Reply
    • Friday, April 18, 2025 2:31 PM | Bill Hussmann
      In a joint session I would raise a question about whether the defense applies and give the parties an opportunity to to brief my question before closing the hearing. While arbitration is a matter of consent I believe we must apply the law as it exists to obtain a correct result
      Link  •  Reply
  • Friday, April 18, 2025 2:27 PM | Jim Burgess
    I generally agree that the arbitrator should not raise a defense or issue that was not asserted by Respondent (or Claimant), unless there is an issue with the arbitrator's authority to act. However, I think it is important for the award to make some mention of the fact that other defenses were not raised beyond what is addressed in the award, and perhaps even call out that this defense was not raised, so that it is clear as to what happened and what did not happen. It also may be appropriate to consider the fact that Respondent had a valid defense that was not raised when weighing discretionary decisions, such as attorney's fees or cost shifting.
    Link  •  Reply
  • Friday, April 18, 2025 2:28 PM | John D. Kimball
    Yes. I have had that situation and raised it with counsel. My view is the arbitrator owes a duty to the parties to get the right result and shouldn't be limited by counsel's failure to raise a defense.
    Link  •  Reply
    • Friday, April 18, 2025 4:20 PM | Richard Storrs
      There are many thoughtful and excellent answers here, and I appreciate the sentiment that the arbitrator is constrained by the parties presentation of issues.

      However, I think this comment is correct…we are supposed to get things right and so I don’t believe we can ignore and dispositive defense.
      Link  •  Reply
  • Friday, April 18, 2025 2:33 PM | Anonymous
    As tempting as it it sometimes (particularly for a pro se party), the arbitrator should not raise an issue of law for the benefit (or detriment) of a party. Neutrality of the arbitrator demands that only what is brought before the proceeding by counsel or a party should be considered. (This is not to say, BTW, that the arbitrator should not carry out thorough legal research with regard to authority that is actually presented by the parties.)
    Link  •  Reply
  • Friday, April 18, 2025 2:36 PM | Kent Sinclair
    There are many reasons a respondent may choose not to raise a statutory defense, even one that would warrant dismissal. These could include considerations related to the broader commercial relationship between the parties, or concern that asserting the defense could result in reputational harm.

    In my view, unless the failure to address the defense would lead to an illegal or unenforceable outcome—for example, awarding interest at a usurious rate in violation of a criminal statute—I would not raise the defense on my own initiative. Party autonomy is a core principle of arbitration, and intervening in such situations risks overstepping the arbitrator’s role.
    Link  •  Reply
  • Friday, April 18, 2025 2:37 PM | Karl Sieg
    No.
    I advise participants in the preliminary hearing that contrary to what many may think that arbitrators tend to split the difference, most often there is a clear winner and a clear loser. Even though each party may prevail on some counts,
    Hear them out. That's why we are there. Something may occur that changes what may seem obvious at a certain moment.
    Link  •  Reply
  • Friday, April 18, 2025 2:55 PM | Mark Schiff
    Arbitrator training 101 reminds us that we are not representing parties, nor are we judges. We are bound by the rules of the AAA or other governing body and the agreement of the parties. A lawyer who makes a mistake is bound by his/her own conduct. If a party discovers that a lawyer's malpractice cost the party a victory in the arbitration proceeding, there are other avenues for parties to pursue.
    Link  •  Reply
    • Friday, April 18, 2025 3:09 PM | David Freedman
      I agree. I decide the claims and defenses the parties submit for decision and nothing else. I think it’s overstepping to suggest or decide unasserted claims or defenses.
      Link  •  Reply
  • Friday, April 18, 2025 3:01 PM | Fred Egler
    I was persuaded by the comment about waiver. The most obvious example is the statute of limitations, which is waivable. It’s hard to imagine a case that could be disposed of solely on that basis where neither party raised it, but in such a case it is not for the arbitrator to intervene. On the other hand, a statute of repose is non-waivable, so I suppose that it would be appropriate to call that to the attention of the parties in order to protect the award from a post-hearing challenge.
    Link  •  Reply
  • Friday, April 18, 2025 3:12 PM | Mark Brancato
    Arbitrators should avoid saying or doing anything or otherwise inviting an inference that calls their impartiality into question. That said, while navigating a course that steers clear of an inadvertent collision with impartiality, an arbitrator should be free to ask the parties to address issues that arise from the testimony and other evidence that are introduced during the hearing but which were not addressed in pre-hearing motions or the parties' pre-hearing memoranda.
    Link  •  Reply
  • Friday, April 18, 2025 3:21 PM | Deborah Rothman, PC
    I always start from the perspective of rendering an award that will not be vacated. If I believe the issue must be addressed for the sake of all parties, I will research it first and then raise the issue with the parties. There is no absolute prohibition on arbitrators doing our own research, just on basing our award on an issue that the parties had no opportunity to brief.
    Link  •  Reply
  • Friday, April 18, 2025 3:31 PM | Michael Orfield
    Absolutely not. Imagine if your resume said that you will always assist council with issues that they fail to recognize so that all issues are dealt with during the arbitration. "If claimants council misses an issue regarding aldamages, I will move to announce the missed issue so that it can be covered. If defense council fails to recognize an issue that would get the case dismissed, I will certainly alert counsel to that issue."
    We are fair and impartial NEUTRALS. Once we become advocates, we lose that critical neutrality and we take away the fundamental underpinnings of the arbitration process.
    Link  •  Reply
  • Friday, April 18, 2025 3:32 PM | Aarta Alkarimi
    In adversarial common law seated arbitrations, generally speaking, the arbitrators are strictly bound by what is pleaded. Under most civil law systems, the expectation is for the arbitrator to know the law. I’d raise it with the parties if I’m arbitrating under civil law and will ask them to make submissions on the issue in their closing or post hearing briefs . The point is to give them a reasonable opportunity to react before I go off and decide.
    .
    Link  •  Reply
  • Friday, April 18, 2025 3:51 PM | Phil Aurbach
    I used to dislike when judges raised issues that hadn't been raised by the parties. In arbitration, the parties choose the arbitrator for his or her expertise as well as fact finding. I would ask the parties to brief the issue.
    Link  •  Reply
  • Friday, April 18, 2025 4:46 PM | Mark L Phillips
    My thoughts are that arbitrators should confine their awards to the issues presented by the parties, unless an unraised issue would affect the jurisdiction of the arbitrator. In my view, once an arbitrator crosses the line and begins to suggest defenses or even additonal potential claims, the arbitrator's role in adr is compromised and diminished.
    Link  •  Reply
  • Friday, April 18, 2025 5:30 PM | Bob Huber
    Generally not, but there are always exceptions. It's a judgment call I would have to make at the time, depending upon the specific statute and the facts of the case. For example, I would likely raise the statutory bar if the statute in question had eliminated the cause of action being pursued. If I was a judge and one spouse brought an action for alienation of affections against the other spouse's paramour, for example, I would certainly notify the parties of the statute eliminating that cause of action.
    Link  •  Reply
  • Friday, April 18, 2025 5:36 PM | William "Zak" Taylor
    This happens all the time in less extreme circumstances than the example. The Arbitrator is a referee, not counsel for one party or the other. Thus, the Arbitrator and Mediator should remain silent. I have on occasion in mediation raised it with the other side as a potential vulnerability without mentioning to the side that could use it.
    Link  •  Reply
    • Friday, April 18, 2025 9:45 PM | Edward Moss, Denver, CO
      If the arbitration agreement indicates that the matter is to be controlled by the substantive law of a particular state, and that law includes a defense which is apparent from the testimony (such as a missed statute of limitations), why should the arbitrator not at least raise the issue and follow the law? Certainly, a judge (also a neutral) would make the effort to decide the case according to the law - - and in that effort, ask the parties about the issue.
      Link  •  Reply
  • Saturday, April 19, 2025 4:30 AM | Geoffrey BH
    in England & Wales, I would used the Arbitration Act 1996, Section 34: Procedural and evidential matters. (1)-It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter. (2)- Procedural and evidential matters include — (g)whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law; . . .

    It seems to deal, inter alia, with precisely the situation described. Indeed, I have used on several occasions, including some where the issue was one of fact within my own technical knowledge - why else would a party appoint an Engineer?

    It is IMPERATIVE, however, that all parties have an opportunity to comment , with argument, and evidence if necessary, on any intervention of an arbitrator.
    Link  •  Reply
    • Saturday, April 19, 2025 4:47 AM | Geoffrey BH (Corrigenda)
      With apologies, please read two corrections to my comment:
      Line 1. '... I would have used ...'.
      Line 5 '... I have used it on several occasions ..'.
      Thank you.
      Link  •  Reply
Association for Conflict Resolution - Greater New York Chapter

© ACR-GNY

Contact Us

Email us at questions@acrgny.org

ACR-GNY's mission and programming are generously sponsored by:

ADR Notable: Dispute Resolution Management Made Easy 

Discounts on ADR Notable platform available for ACR-GNY members!

Powered by Wild Apricot Membership Software