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Arbitral Tribunal Civility

Friday, June 20, 2025 9:41 AM | Anonymous

What is the best way for an arbitrator to raise issues of civility (or lack thereof) on the tribunal? If two arbitrators have issues with the third? When should the problem be raised with the administering arbitral institution?  What if it is an ad hoc arbitration? 

What are your thoughts? 

Comments

  • Friday, June 20, 2025 10:04 AM | Robert L. Arrington
    Thankfully, this is a problem I have never had. I think every effort to resolve such differences within the Tribunal should be made before the forum administrator is asked to get involved. Resignation from the panel would be the last option to which the troubled arbitrator should resort.
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  • Friday, June 20, 2025 10:07 AM | Alan Pralgever
    I fortunately have never had this problem either, but I would first try to work it out personally and if that failed I would call the administrator. However, I hope that is never required.
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  • Friday, June 20, 2025 10:11 AM | Ernest C Brown
    The best approach I have found to deal with contentious parties is triangulation.: First assess how the comment or behavior is affecting yourself (anger, frustration, amusement), then try to assess the aggressor's tone and points from their point of view, then assume a third party is watching the entirety of the situation. This process gives you time to recover from the initial shock of a comment or behaviour, preventing a rash and thoughless response, and time to use appropriate strategies and tactics to deescalate the situation. Generally, my approach is a progressive discipline approach, such as suggestion the approach is not helping their case, a warning of further action, taking a break, or more serious sanctions like skipping a day of testimony or excluding a disruptive spectator. On of the most successful ways I have calmed the waters is to state, "This is obviously important to your side. "I want you to take fifteen minutes in another room with opposing counsel to work this out." Also, some trainers suggest questions, all of which you are really wanting a no answer: "Do you want to end the hearings for today and come back tomorrow?" It is harder to get a Yes than a No, and it puts the anxious party or counsel in control of their destiny, although you are guiding them towards better behaviour. One thing I avoid is taking one party or counsel aside. That is ex parte communication at its worst and it will not end well for anyone.
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    • Friday, June 20, 2025 10:17 AM | Ernest C Brown
      My comment was with regard to the first question, the general issue of parties and counsel not getting along. Thankfully, I have not had a fellow panelist get into a contentious role, but the triangulation approach is still my fall back for those types of situations. I have experienced in my 43 years with the AAA, a few panelists falling asleep, in one case taking a drink at lunch, or asking way too many questions. In those cases, as Chairman or Panelist, I point out our ethical obligations under the AAA Rules and the California Statutory Rules and if they don't get it, I would definitely get the administrator involved in straightening things out.
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      • Friday, June 20, 2025 10:24 AM | Ernest C Brown
        As to the last question, this is a reason the AAA is such a great resource. In an Ad Hoc Arbitration, there is no administering agency to serve as a neutral overseer. That leaves the arbitrator(s) on their own. And dealing with other arbitrators or financial issues with the parties becomes far more difficult and risks issues of creating bias or putting the enforcement of the award at risk.
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    • Friday, June 20, 2025 10:55 AM | Louise Barrington
      Love that advice. If the problem is one of personality clash or apparent bias it should be handled within the tribunal. If it’s a lazy side arbitrator or it involves a procedural fairness issue ( one member leaking to a party) I would have a discussion with both the others about how to proceed. Always aware that consensus is key… in extreme circumstances make the institution aware of the issue.
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  • Friday, June 20, 2025 10:38 AM | Thomas P. Valenti
    My specific comments focus on lack of civility. However at the outset, it is important to note that civility in arbitration is more than politeness—it is a core professional norm that fosters respectful communication, mutual trust, and clarity among tribunal members. It underpins the tribunal's credibility, supports effective deliberation, and ensures that the process is seen as fair and legitimate by all participants. Now, addressing the specific issue in the context of incivility: 1. Initial Internal Discussion
    If civility issues or behavioral concerns arise among arbitrators, the first step should be a private conversation:
    • Raise the issue directly with the arbitrator concerned, ideally in private and in a constructive, non-accusatory manner.
    • Use language that references shared responsibilities and professional norms rather than personal critique.
    • If two arbitrators have concerns about a third, they may discuss the issue among themselves first, then address it as a pair with the third arbitrator.
    2. Escalation to the Arbitral Institution (if administered)
    If the issue persists or impacts the integrity or efficiency of the process:
    • Refer the matter to the administering institution, such as the AAA. The AAA provides support in managing arbitrator conduct and can intervene to protect the process's integrity.
    • The Arbitrator Reference Manual underscores that poor performance, demeanor, or ethical breaches reflect poorly not just on the arbitrator, but on the process and institution. Parties often hold the arbitrator accountable for negative experiences, so early reporting is key.
    3. In Ad Hoc Arbitration settings:
    • Refer to the arbitration agreement or the procedural rules adopted (e.g., UNCITRAL Rules), which may contain provisions on arbitrator conduct.
    • Consider appointing a facilitator to mediate the internal issue.
    • If no resolution is possible and the behavior constitutes a serious breach of duty (bias, incapacity), parties may explore challenges or removal under applicable national arbitration laws or the agreed rules.
    4. Documenting the Issue
    Maintain confidential records of any communications and steps taken to address the issue. This protects against future allegations and supports institutional review or judicial scrutiny, if needed.
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  • Friday, June 20, 2025 10:45 AM | Michael Orfield
    It starts with a strong chair. This is an individual who creates an open environment among the three panelists. The chair make sure that all sides of an issue are welcome and that only a thorough discussion of an issue will help resolve it to conclusion. Civility and professionalism start at the top, and they both need to be exhibited by the chair. When one or both wings deviate from this road, the response needs to be swift and clear from the chair. The chair will need to become the mediator in these disputes and resolve them as quickly and as amicably as is possible. The direction that the panel is to take for all discussions needs to be made clear at the very first meeting, and that level of civility maintained throughout.
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  • Friday, June 20, 2025 11:15 AM | Edwin H. Stern
    While it may not always be necessary. I believe that the panel should have a discussion before the arbitration begins about procedures to be used with a reminder about the need for decorum among panel members which could impact internal discussions as well as the proceedings.. And at the opening of the proceedings with the parties, I think it is beneficial to state what is expected in terms of decorum and civility from council regarding the panel as well as adverse parties. I think these “matter of fact” statements are reminders that could help relations among all participants.
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    • Friday, June 20, 2025 11:16 AM | Edwin H. Stern
      Sorry for poor proofreading, including the word council instead of counsel.
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  • Friday, June 20, 2025 11:41 AM | Leslie W. Langbein
    Unfortunately, I encountered a problem with civility very early in my arbitration career. I was a junior member of the panel so I did not feel it appropriate to confront the other panelist (who just happened to be the chair). I did raise it after the fact with the Case Administrator and asked that I not be placed on any future cases with this particular arbitrator. Now that I have quite a bit more experience under my belt and should this ever occur on another panel, I would ask for a recess, ask the chair for a panel conference, and address the issue face to face but in a non-confrontational manner. If that did not cure the problem, then I would address it privately with the Case Administrator.
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  • Friday, June 20, 2025 12:12 PM | Donald Hordes
    If one or both attorneys get out of hand, I would go off the record, escort them into a separate room and speak to both of them at the same time, instructing them in an even-handed kind of way to lower the temperature. If this does not work, I would again go off the record outside the presence of the parties and advise the troublemaker(s), either one or both that if it continues, I will send the relevant excerpts of the record, either transcribed or recorded, to the AAA Case manager for his or her review so that the AAA might tax the offending attorney(s) costs or the non-offending attorneys fees, assuming, of course, that the AAA has that authority. In an extreme case, I would abruptly shut down the hearing and reschedule it for a later date when cooler heads prevailed.
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  • Friday, June 20, 2025 12:26 PM | Lucy Inman
    What an important question and so many helpful comments. Whether ad hoc or not, the first and perhaps most important practice for collaboration is for the panel members to get to know each other as early as possible, including standard expectations of parties and standard practices for the entire procedure. Tempers are more likely to flare when responding in the heat of a conflict. If two arbitrators have issues with a third, they should discuss as a trio to avoid splitting. If just one panelist has an issue with one other, the offended panelist should speak with the third first to (1) give the offended panelist a sounding board and another person's perspective on the conduct (2) to avoid splitting, which is more likely to happen when two don't agree and (3) at least two knowing there is a problem before speaking with the incivil panelist. Either way, the first response should be to take a break in the proceedings if counsel/parties are present. The second step, unless the conduct is violent or immediately unsafe, could start with a caretaking query (are you okay? your comments/conduct don't seem like the professional I'm sure you are). If the issue arises not in the presence of counsel/parties, taking a pause and addressing the person by phone or virtually or in person is far more helpful than email correspondence. If it can't be resolved, email to memorialize what's happened and the discussion is needed both for fairness to everyone and for referral to the arbitral institution. I don't think the institution should be brought in until the three panelists have tried to resolve. If there is no institution, perhaps the court is the appropriate authority to resolve the problem, or at least to ask for guidance.
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  • Friday, June 20, 2025 2:07 PM | Henry F Marquard
    I recommend that the arbitrators get in touch with each other before the preliminary hearing gets scheduled. Take enough time (even if this in non-billable) to discuss possible issues, preferences, and ideas on how to proceed. Often personality issues can surface during this discussion and be resolved or addressed outside the view of the administrator and parties.
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  • Sunday, June 22, 2025 8:09 AM | Sheila Carpenter
    In more than 30 years as a AAA panel member, I have found most of my fellow panel members to be dedicated professionals and working with them has been a delight. Twice I have been on a panel where I thought one member was a jerk, basically self-centered people. I saw no need to report this to anyone, figuring our case administrators will figure this out and also recognizing that I may think someone is a jerk but others may not. Indeed, I have not been asked to serve with either of these people again.
    As to counsel, I give a short statement at the outset explaining that everyone will have the opportunity to have their say, they are not to interrupt one another or me. If someone is rude, I deal with it then, pointing out the inappropriateness of that kind of talk or behavior. Occasionally, when rude behavior persists, I have sent the clients out of the room to talk with the lawyers.
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  • Sunday, June 22, 2025 12:01 PM | David E. Robbins
    While it goes without saying that civility is expected of all participants to an arbitration, it is my experience that when the Chair discusses expectations of civility at the first hearing (not the pre-hearing) and looks everyone (arbitrators included) in the eyes, it sets the right tone. Should things get out of hand, the Chair should immediately but tactfully repeat those expectations and, if necessary, call a time out in the hearing. Hearings can be quite contentious and some attorneys try to take advantage of what they perceive to be weak or diffident Chairs, especially when making objections and during cross-examination. A firm hand with a velvet glove is best.
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