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Repeat Arbitration Filers

Saturday, June 14, 2025 2:28 PM | Anonymous

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Should there be limitations on arbitrators handling cases with repeat filers (e.g., disputes between same employer v. different employees or same company v. different vendors)? Does disclosure remedy perceived conflicts of interest, or in the alternative, should there be a cap on the number of cases an arbitrator can handle with the repeat filer? If a cap, what is the best avenue to implement -- e.g., within rules of arbitrator ethics or institutional limitations?

What are your thoughts? 

Comments

  • Saturday, June 14, 2025 2:57 PM | Anthony Zebouni
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    My experience is that I’ve been appointed to numerous residential construction defect cases where the respondent files a third party action against the same parties. They have almost all settled. I would think that a disclosure is adequate but I don’t see the necessity of appointment limitations.
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    • Saturday, June 14, 2025 9:24 PM | George lobman
      In most cases if there is a repeat Claiment with differing Respondents you have never met the parties or you’d have to disclose that primarily. Without knowing the Claimant or the Respondents I see not reason to limit the number of cases .
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  • Saturday, June 14, 2025 3:00 PM | Michael Orfield
    I do not believe in artificial barriers regarding the ability to be fair and impartial. This position makes it critical that the arbitrators give an accurate recitation of a prior work, and then leave it to the parties to decide if they wish to accept the arbitrator or exclude them. The arbitrator is free at two pass on a selection if the arbitrator feels that given past experience with the party and or the attorneys, the arbitrary cannot be fair and impartial. The parties have every right to choose their arbitrator. And irrespective of past performance, a party and the attorney might desire this particular arbitrator on this particular case. They should have the ability to choose or exclude. Making some artificial rule, preventing an arbitrator from serving for me is illogical. Trial judges have this issue during the entire time they are on the bench. They can recuse themselves if they feel they cannot be fair and impartial, and the parties can file a challenge against a judge if they feel the judge cannot be fair and impartial.
    There is the issue with trial, judges, and trial attorneys that challenging a judge might have repercussions down the line, especially with a limited number of trial judges. That should not be the case in the arbitration system. Between the attorneys and the arbitrator, I have every expectation of that a fair and impartial hearing can be held, and secondarily arbitrators that parties wish to serve can end up serving if both sides agree.
    .
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  • Saturday, June 14, 2025 3:04 PM | Nasri H Barakat
    This is an interesting topic that many institutions have tried to tackle. All the suggestions I have seen center around the individual arbitrator's disclosures. The number of cases maybe misleading. I was appointed once by the same party to 35 cases involving Certificates of reinsurance. After the panel was properly constituted the parties decided to consolidate all the cases into one arbitration! so the number of appointments alone maybe misleading unless it is followed by an explanation. Others tried the income indicative suggesting the the income of the arbitrator in a given year should not exceed a certain percentage of his or her total income! This can also be misleading as there are cases that have a large number of motions and hearing days that consumes the arbitrator's time and give them a significantly high percentage of income in a given year. Perhaps a combination of the number of cases and income would be a more fair way to guard against the perception or the appearance of impropriety and bias! Keeping track and judging these criterions and the consequences should be well monitored during implementation. Lastly, the monitoring and remedy against abuse should also be addressed with much care and consideration so it is fair and equitable to the parties and arbitrators.
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  • Saturday, June 14, 2025 3:04 PM | Michael Seng
    Disclosure is not enough. It does not communicate the risk that an arbitrator (knowing a company he ruled against will not likely hire him again) has a motivation to favor a frequent business filer in hopes of getting more cases with that company.

    A time ban (one year?) on repeating with the same business would be more effective.
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    • Monday, June 16, 2025 9:32 AM | Robert Alston, Esq
      I concur. There are so many experienced competent Arbitrators on AAA’s lists, I see no reason to offer multiple repeat Panelists unless the parties, for a reason of limited experienced pool members, waive a default to a temporal repeat Arbitrator restriction.
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  • Saturday, June 14, 2025 3:13 PM | James Gansinger
    I think that the primary underlying concern is with the integrity and reputation of the AAA. The focus should be on repeat users, not repeat filers. It is not a secret that the AAA’s best customers will favor arbitrators who rule in their favor and will not select arbitrators who have ruled against them. That is a common sense business decision that, unfortunately, stacks the deck against the one-time or infrequent party. The institution should protect itself with a rule that caps the number of cases that any arbitrator can have with any specific party. The rule could be subject to a knowing waiver by the parties.
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  • Saturday, June 14, 2025 3:33 PM | Judge Victor Bianchini
    I don't think this is a problem. As long as there are disclosures, the parties should be permitted to choose their arbitrator, whether or not they are repeatedly using the same arbitrator. This is a marketplace, and market protocols should be honored. If the parties want a certain arbitrator, then I can't imagine limiting the parties' choice. The parties may want an arbitrator with a particular background or skill, and surely, if both sides agree, especially with the parties knowledge of the history of a particular arbitrator's decisions, it should be no one's business if they consent.
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  • Saturday, June 14, 2025 3:46 PM | Ron Dresnick
    think this is a big problem for organizations like the AAA. I believe the public believes that arbitrators will not be fair when one of the parties is a "repeat filer". Yes, disclosure is helpful in dealing with this perception, however since the public does not often deal with arbitration or arbitrators most people that are forced into an arbitration are probably unable to effectively use the disclosure requirement. I think the best way to handle it would be for the AAA to place a numeric limit on the number of cases from a given filer that an arbitrator can accept. Think of the reputation FINRA has.
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    • Sunday, June 15, 2025 7:24 AM | Mike Lampert
      A problem for AAA, especially in the context of organizations with standard AAA arbitration clauses in their agreements and specialized fields of expertise. For several years I was on the panel for matters from such an organization. Most matters were unopposed, a few were and often settled. I disclosed I'd been on prior matters with the institutional client, and that I had previously seen written evidence from its witnesses and argument from its in house counsel. No one ever objected (as noted, many were unopposed) but at some point I felt someone might question in court whether I should have sat, even unopposed, and I stopped. Never a material part of my income at its fixed rate. On the other hand AAA may not have that many panelists experienced in an area - does it deprive the institutional client of the benefit of its bargain to impose an arbitrary limit? It's a toughie.
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  • Saturday, June 14, 2025 4:07 PM | Thomas P. Valenti
    Repeat Filer Bias
    Research and case law reveal genuine concerns about "repeat player" bias, where arbitrators may consciously or unconsciously favor parties or counsel who frequently appoint them, creating financial incentives that could compromise independence Studies suggest that sophisticated repeat-player employers may gain advantages by understanding particular arbitrators' decision-making patterns, even absent direct bias. Regarding disclosure, the 2024 IBA Guidelines require disclosure when an arbitrator has been appointed "more than three times within the past three years" by the same counsel or law firm . FINRA rules require disclosure of "any existing or past financial, business, professional, family, social, or other relationships" that might affect impartiality. There's tension between maintaining confidentiality of previous cases and addressing repeat player perceptions . Simply disclosing repeat appointments may not address the underlying structural incentives that create bias pressure, particularly for part-time arbitrators who depend on regular appointments for income. There can be arguments in favor of caps, but since so many of the cases, get settled, some institutional monitoring may assist in distinguishing between appointments of and decisions by the arbitrator.
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    • Saturday, June 14, 2025 4:30 PM | Denise Hammond
      This assumes the parties are not intelligent. I was selected as an arbitrator by an attorney when I had just awarded his client $00 on a very large
      claim. Lawyers are smart, again, no need to arbitrarily limit.
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  • Saturday, June 14, 2025 4:27 PM | Denise Hammond
    I have 50+ cases with the same claimant/ respondent attorneys. They select me because
    they know
    I am fair and efficient and I know what I’m doing. It makes no sense to arbitrarily limit the number of cases we have together. If they get tired of me, or think I am biased, they can strike me. Arbitration is a lot about self determination. Leave it alone.
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  • Saturday, June 14, 2025 4:34 PM | Denise Hammond
    I wonder if those arbitrators who are suggesting caps on the number of times an arbitrator is appointed with the same parties are arbitrators that don’t get much work. They figure if they can sideline the popular arbitrators, they’ll get more work.
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  • Saturday, June 14, 2025 5:04 PM | Henry Parr
    Disclosure should be sufficient. If there is an objection then. At some point. This should be a basis for disqualification. Not sure where the limit is
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  • Saturday, June 14, 2025 8:16 PM | Jim Burgess
    Disclosure should be adequate to deal with the issue. I am not convinced that arbitrators would be biased in favor of repeat filers - unless they are already biased in favor of anyone who might hire them in the future. I have not seen that. I don't think arbitrary caps or limits are needed. Arbitrators should focus on being fair and neutral, and on adequately explaining the reasons for their decisions. This applies regardless of whether someone is a one-time or repeat filer. Someone is going to lose and someone will win. I believe that if they understand the Arbitrator's reasons they will understand that the Arbitrator is following the law and the contract and is not arbitrary or uninformed, even if they disagree with the outcome.
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  • Sunday, June 15, 2025 4:32 AM | Geoffrey BH
    A most egregious English
    case is COFELY LIMITED v ANTHONY BINGHAM and KNOWLES LIMITED found at https://www.bailii.org/ew/cases/EWHC/Comm/2016/240.html See esp. §§ 63, 64, 66, 67, & 68.
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    • Monday, June 16, 2025 11:55 AM | Jim Burgess
      Thank you for posting. Interesting case. This case shows that disclosure can address the issue of repeat filers. In this case, not only did the arbitrator not disclose that 18% of his appointments over a 3 year period came from the same firm, but that 25% of his income derived from those arbitrations. Further, when the issue arose and the arbitrator was asked for a supplemental disclosure, he not only refused but became hostile to the objecting party. Had the arbitrator disclosed and not become hostile, the issue of "apparent bias" might have turned out differently. The mere fact of repeat business was not the sole factor. Lesson: Always disclose, provide prompt supplemental disclosures when necessary, and don't become hostile.
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  • Sunday, June 15, 2025 10:38 AM | Robert H Flynn
    Approved vendor lists of arbitrators utilized by insurers present a similar problem or an example of the problem. Claimants could readily worry about why an arbitrator is so approved. This is perhaps curable by having a court appointment process or better still using a huge provider of neutrals like AAA.
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  • Sunday, June 15, 2025 10:39 AM | Henry Strickland
    Most of the responses seem to assume all parties are represented by counsel, as is usually the case. Disclosure may be adequate in these matters because most lawyers are able to research potential arbitrators and evaluate possible bias. Unrepresented consumers, however, may not understand the danger of bias posed by repeat players nor have the wherewithal to evaluate it.
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  • Sunday, June 15, 2025 11:57 AM | Dean John Feerick
    I recall the old days when I served as an advocate in the printing and airline fields, and then as an arbitrator in employment contracts, including in the sports world, the desire of parties to have a contract arbitrator in their bargaining agreements.. I also recall when I chaired a panel with two distinguished AAA arbitrators counsel wanting to learn about other awards by a named arbitrator not publicly available and we allowed such access as a matter of fairness without the name of the other employees appearing. Disclosure exceedingly important where employees involved while vendors presumably have counsel who can deal with the issues of justice.
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  • Sunday, June 15, 2025 11:58 AM | Michael Donaldson
    Multi filers should be spread around to various arbitrators rather than sending them to the same arbitrator time after time.
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  • Sunday, June 15, 2025 12:01 PM | William G. Hussman, Jr.
    I do not think there should be a cap on cases. Often times counsel for each side will appreciate an approach taken by the Arbitrator and the knowledge basis of the Arbitrator. I think it is mandatory that all such repeat cases be disclosed so that if one party believes there may be bias arising from repeat service then the Arbitrator must be disqualified. I believe AAA should be sensitive to any request based on repeat service and honor either party’s request for a new Arbitrator.
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  • Sunday, June 15, 2025 12:03 PM | Mitch Goldberg
    So long as the parties agree they can select the arbitrator of their choice. Their is no need of further disclosure if both parties agree.
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  • Sunday, June 15, 2025 12:05 PM | Henry Parr, Jr.
    I think disclosure should be sufficient
    Sent from my iPhone
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  • Sunday, June 15, 2025 12:07 PM | Dr. Michael Kesselmen
    The issues must be reconciled through mediation. Repeat Arbitrations can ultimately lead to frustrations if not reconciled through meaningful mediation!!
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  • Sunday, June 15, 2025 1:10 PM | Paul Burkhart
    Disclosure is certainly sufficient with represented parties. I suppose it a little more gray with unrepresented parties. Perhaps have the parties sign an acknowledgement of the disclosure. I do not believe caps are necessary. Arbitrators are neutral, period. If they are not, they have no business being arbitrators and that is a different discussion. These parties can also potentially benefit from the scale. Subsequent cases of a similar nature often require less of my time to get my head around everything.
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  • Sunday, June 15, 2025 2:09 PM | Michael S. Jordan retired judge
    I believe in self determination and would not limit the parties by imposing arbitrary limits. There must be full disclosure of prior contacts and their number so the parties have the information to make their own decision. For self represented persons, the dangers of inexperience should be set out by AAA pointing out any unconscious bias by repeated contacts. The pro se litigant then makes their own decision to continue unrepresented and to go with a particular neutral.
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  • Tuesday, June 17, 2025 5:15 AM | Anonymous
    I served as an arbitrator in a series of cases involving two separate companies that were frequent flyers. When I was assigned a new case, I disclosed that I had previously acted as an arbitrator in several cases involving the party in question. I always kept my disclosure updated with the approximate number of cases I had handled with that party before.

    No one ever objected to my being the arbitrator in those cases.

    After a while, AAA asked one of the companies to stop using AAA because that company had developed a pattern of objecting to the appointment of an arbitrator if that arbitrator had ruled against the company in a case.

    The result is that the national company went to another arbitration service provider, so I'm not sure what positive effect it has from having the arbitration service provider being the one responsible for regulation.

    You also need to distinguish frequent flyer issues from the mass arbitration claims system, where you could have dozens or hundreds of cases involving the same party on one side. Since all those cases are brought at the same time, it’s unlikely that the frequent flyer effect will become an issue.

    The bottom line is that while I acknowledge the frequent flyer problem exists, I believe that resolving it will be relatively complex due to the underlying dynamics.
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    • Friday, June 20, 2025 2:38 PM | Mark S. Bosler
      I think that appointing the same arbitrator on cases where at least one party is a repeat filer gives that party at least a tactical advantage after a few cases. Familiarity with the arbitrator's thinking processes, procedures and methods would seem to be an advantage over the party without such insight. For example, it may create an advantage in knowing what witnesses to call and what evidence to present. It is also possible for bias to creep into the process which only an outside observer may be able to detect.
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