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Advocate Criticizing an Arbitrator During a Pending Case

Tuesday, February 03, 2026 6:48 PM | Anonymous

How to Become an Arbitrator: Complete Guide

Have you ever heard of an advocate leaving an arbitrator a voice mail message criticizing his/her interim rulings and proclaiming that he/she is not a good arbitrator? What should the arbitrator do? Should the arbitrator withdraw from the case?

What are your thoughts?



Comments

  • Wednesday, February 04, 2026 10:20 AM | LAWRENCE D BERGER
    1. No, I have never heard of that. 2. The arbitrator should place the text of the voice mail message into the record. Since it is (apart from everything else) an improper ex parte communication, the arbitrator should state that on the record and give other parties an opportunity to respond. 3. It seems likely that the advocate's purpose was to get the arbitrator to recuse, so the arbitrator should not do that unless there is other grounds to do so.
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    • Wednesday, February 04, 2026 2:37 PM | Steven Skulnik
      I agree with all that. I would add to my email to all counsel transcribing the voicemail message a reference to the rules that (a) prohibit ex parte communications and (b) authorize arbitrators to sanction parties.
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    • Wednesday, February 04, 2026 7:32 PM | Deborah Rothman
      In my 35 years of service as an arbitrator, similar things have happened twice. In one, one party requested my recusal for bias. I was not made aware of the request, and AAA reviewed it and declined to take me off the case. But the moving party did not know that, and so at our next hearing, he asked me to recuse myself based on my knowledge that he had asked to recuse me! I stated that this was the first I had heard of his request, and that although I was a bit surprised, I did not feel I had treated that party in a biased manner, nor did I feel I could not continue to serve in an impartial manner in light of the request for recusal.
      In the second instance, it was Claimant, who was represented by counsel and had demonstrated by his conduct at the hearing and by testimony about his conduct in relation to his former partners and their employees, that he was unstable, who sent me an ex parte poison pen email. I was actually shaken, because he threatened me and my family. But I simply sent the e-mail to both sides for their reference, and stated I believed I could continue to serve fairly and impartially. The irony is that I had bent over backwards from the beginning of the hearing to make sure the party understood that while I was hearing awful things about him, I saw also knew he was more than the accusations and outbursts, and that I looked forward to hearing from him.
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    • Thursday, February 05, 2026 9:11 AM | Tuneen Chisolm, Esq., M.S.Ch.E
      I agree completely with Lawrence D Berger.
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  • Wednesday, February 04, 2026 10:20 AM | Jack Levin
    Never heard of it. I have been criticized in front of other counsel. No problem. Don’t overreact. Keep going as long as I can be fair. This happens. Counsel get upset. As for the hypothetical, call the case manager. I suppose discourse is required. Unless I can’t continue to be fair, I would not recuse. Keep going there, too.
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    • Wednesday, February 04, 2026 10:22 AM | Jack Levin
      “disclosure,” not “discourse”
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  • Wednesday, February 04, 2026 10:22 AM | Daniel Feinstein
    Treat it as a generic ex parte communication and reveal it to the other side while telling the original party that I do not (with limited exceptions not relevant to this hypo) allow or consider information or requests provided ex parte.

    Otherwise ignore it. If they want to file a motion seeking recusal, I'd consider whether there are any plausible reasons to grant. But a voice message isn't sufficient to trigger that process.
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  • Wednesday, February 04, 2026 10:34 AM | Mike Gruber
    I have not had experience with that but it is an improper ex parte communication. The arbitrator should not resign. You do not want to reward an advocate's improper actions. All parties and their counsel need to be apprised of the communication. It should be reported to the case manager and AAA needs to address it with the advocate who sent the communication and all other parties and counsel.
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    • Wednesday, February 04, 2026 11:18 AM | Laura Bottaro
      I have had experience with improper ex parte emails - not voice mails - however I agree the same response applies. Send a copy of the communication to the AAA case manager and ask him/her to share a copy with all parties and remind the parties that improper ex parte communications are prohibited. This should have been discussed in the preliminary hearing and part of the preliminary conference report and order. Setting that foundation first allows the arbitrator and case manager to remind the parties if it comes up later in arbitration proceedings. I agree that no action should be taken on any complaints unless a motion is filed with AAA, at which point, AAA should handle with the parties.
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  • Wednesday, February 04, 2026 10:42 AM | Joe Cox
    This is an improper communication. Disclose to AAA and all parties involved and then do NOT withdraw. You cannot reward one side for its bad conduct. I have never had this happen to me but it would not phase me. I was a judge for several years and I know lawyers were unhappy with rulings in cases.
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    • Wednesday, February 04, 2026 11:29 AM | Scott Link
      I agree with Joe Cox. This is an amateurish and infantile attempt to secure a recusal by the arbitrator.
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  • Wednesday, February 04, 2026 10:48 AM | Jill Okun
    It has happened to me not ex parte, but only with a self-represented pary. I did not recuse because that is exactly what the party wanted
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  • Wednesday, February 04, 2026 11:12 AM | David Waddell
    As soon as I was aware that it was an advocate leaving the message; I'd hang up and forward the message to the case administrator including what I heard, which I'd expect to be nothing substantive. .
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  • Wednesday, February 04, 2026 11:19 AM | Jim Gansinger
    Of course the arbitrator should not withdraw. The issue here is the communication, not the content. This is an improper unilateral communication. I would report the fact and content of it to AAA,, because AAA would probably want to respond. I would also respond to the sender, copy to all counsel with the content, that copies of all communications to or with the arbitrator, regardless of content, must be copied to all parties, with a copy also to AAA. I would then move on with the case.
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  • Wednesday, February 04, 2026 11:19 AM | Eric D. Kuritzky, Architect, CBO, Arbitrator
    Depending on the nature of the critique, the arbitrator should forward the voice mail to AAA and ask for advice. If there's a problematic 'tone', and the potential ability to have the arbitrator's determination challenged, I would would suggest withdrawing, with fees appropriate to that time in the process. As an arbitrator, I would not respond directly to the advocate.
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  • Wednesday, February 04, 2026 11:33 AM | Lori B Sanford
    I received an angry voicemail from a young gentleman after dismissing all causes of action on a summary jugment motion and I had just completed AAA's training on protecting ourselves. I contacted the case manager and his counsel and explained what happened. His attorney was apologetic and spoke to the client. I still watched my back for a few weeks afterwards.
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  • Wednesday, February 04, 2026 11:51 AM | David J. Hoffman
    I would review my decisions and conduct to ensure that I hadn't done anything unfair or untoward. If so, craft a remedy. If not, as likely, let the other party know about it. I try to communicate to losing parties that their case has been heard, that i have understood them, to minimize such frustration.
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  • Wednesday, February 04, 2026 12:41 PM | Michael Seng
    Lawrence said it perfectly in comment no. 1.
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  • Wednesday, February 04, 2026 12:45 PM | Illinois lawyer
    I agree with all of the comments. In Illinois lawyers, including arbitrators, have an additional responsibilities regarding improper lawyer conduct to report unethical conduct to the ARDC - Attorney Registration and Disciplinary Commission. Ex parte communications would trigger that report that obligation and the failure to report by other party's lawyer or the lawyer arbitrator would subject each non reporting lawyer to discipline. In the case of Himmel a non reporting lawyer was given a suspension of his law license.
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  • Wednesday, February 04, 2026 12:53 PM | Robert S. Amador, Commercial Arbitrator
    Also could be setting up to attempt to vacate the award based on bias. If its early, I would probably withdraw. I would also get the ADR provider organization involved asap.
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  • Wednesday, February 04, 2026 1:26 PM | Marc Elliott NYC
    My first thought is that that is extremely unwise behavior on the part of counsel. My second thought is to disclose it to the case manager, and then disclose the fact of the communication not necessarily the contents, to all counsel and parties. But certainly I would not reduce myself if it happened to me.
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  • Wednesday, February 04, 2026 1:28 PM | Alvin Zimmerman
    Immediately report it to the case manager and let the case manager deal with it.
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  • Wednesday, February 04, 2026 1:39 PM | Michael Orfield
    First, it cannot be the case that an advocate openly criticizing the arbitrator would call for recusal by the arbitrator. If this was so, all an advocate would need to do to get rid of an unpopular arbitrator would be to openly criticize the arbitrator.
    Second, receiving such a comment from an advocate would certainly cause any good arbitrator to ask her or his self whether they could continue as the arbitrator. Emotions can run high, and an arbitrator should appreciate that there may be occasions when an advocate steps out of line given the emotions that the advocate is feeling at the time. I would imagine that most arbitrators, especially those who have been arbitrators for a significant amount of time, could put the comments in proper perspective and continue on in the case.
    I am unaware of any contempt procedures that are available in the arbitration process. If there were, an arbitrator could have such a session and could sanction the advocate if the arbitrator felt that the remarks were that significant and outrageous.
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  • Wednesday, February 04, 2026 2:05 PM | Josette Belvedere
    I guess my thought is: Who would do something so stupid? If I were arbitrating on behalf of a tribunal, I would report to the tribunal in case they wished to take some action. As an appointed arbitrator on a three-man panel, I would ignore & move forward.
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  • Wednesday, February 04, 2026 5:40 PM | Jeffrey Kravitz AAA arbitrator
    I had an in pro per threaten my life. On the record. I smiled and said, "Mr. X, I know this is stressful. Let's get back to our case." He calmed down.
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  • Wednesday, February 04, 2026 6:33 PM | Dennis Bolazina
    No. If the arbitrator withdraws then it is an easy weapon to be used to change arbitrators. The attorney could be advised that perhaps, given the email, whether the attorney believes that he/she is doing the client a disservice by continuing as the representative.


    Of course if the arbitrator believes that he can no longer be neutral he should withdraw.
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  • Thursday, February 05, 2026 3:46 AM | Geoffrey BH
    Withdrawal may be what the advocate seeks.
    Be sure that the contents of the message are known to both sides - Parties as well as Representatives - if necessary by written confirmation of the conversation "I understood you to argue ..."
    I nave been criticised by Counsel on the grounds that I was not a lawyer. I replied, "I will be very glad to hear what you say. If I don't understand, I will be grateful for your help,"
    It worked.
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  • Thursday, February 05, 2026 6:08 AM | Paul Ngotho - Chartered Arbitrator, Kenya
    I have never heard of such. The closest I have been is one advocate complaining verbally during a procedural meeting that I was indulging the opposing advocate unduly. The procedure is the same.
    The most important step is to avoid contacting the complainant directly or becoming defensive. There are two salient issues. First, ex parte communication. Second, the adverse view about the arbitrator.
    I would convert the voicemail to text and forward it to both parties with directions repeating directions against ex parte communication and inviting any party which considered that the communication raised an issue of my independence, impartiality, suitability or qualifications to file an application for my recusal within the time stipulated by the applicable statute and arbitration rules. A decision reached after hearing both parties should lead to either my dismissal/recusal or the expunging of the voicemail message from the proceedings.
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  • Thursday, February 05, 2026 11:19 AM | Anonymous
    After ruling unfavorably in a few preliminary matters, I received a late evening voice message from an advocate berating me and calling my judgment into question in a long rant. It was in a forum other than the AAA. I forwarded the message to the case administrator who shared it with the other party. (I didn't think to ask that the party be copied. Good idea.) I decided that I could disregard the comments and not penalize the client so I did not recuse. The case settled. Afterwards I wondered whether I should have reported the advocate to the state bar.
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  • Sunday, February 08, 2026 1:36 PM | Anonymous
    I had quite the experience serving as an arbitrator with an attorney representing a party in a premises liability/PI matter (proprietor had an arbitration clause in a click wrap agreement). Attorney was very belligerent, rude and would not stop talking during hearings. I later learned that attorney, by their own admission, had been recording all hearings without anyone's knowledge. I sensed that this was all an attempt to bait me, and so I acted accordingly -- calm and even handed. Like others here, I too was very surprised at this conduct but was determined to remain professional and neutral -- and did just that. What I learned: assume such behavior is a ploy to get you to remove yourself or react emotionally. Do neither.
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