What Sorts of arbitration varieties do you know? What is (are) the role(s) of arbitrator to you? Should arbitrator as general rule be required to be impartial and or independent of the parties?

 Arbitration

Arbitration is a popular and extensively used means to finish disputes. It is one of several kinds of Alternative Dispute Resolution, which offer parties to a controversy with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to meet the terms with the arbitrator’s award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator’s decision is usually final, and courts rarely reexamine it. [1]

Arbitration has established itself as one of the most important methods of dispute resolution over the years. Arbitration Law ensures that the business is not at risk by using out-of-date information. It is specially designed to give the clients an all-encompassing exposition of the arbitration process and the legal proceedings which bind it.

The core of arbitration is that it is an agreement between two or more parties to try to resolve a dispute outside of the court system. The parties agree upon a third party as an arbitrator who will act as a judge and jury. After giving the parties the opportunity to present their side of the story and to present any relevant documents or other evidence, the arbitrator will act as King Solomon to decide who wins and who loses. [2]

There are usually no set rules or established methods as to how arbitration is conducted. It is typically left to the agreement of the parties. To facilitate the process, though, the parties will oftentimes agree to use the rules of an established organization like the American Arbitration Association.

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Traditionally, labor and commerce were the two largest areas of arbitration. However, since the mid-1970s, the technique has seen great expansion. Some states have mandated arbitration for certain disputes such as auto insurance claims, and court decisions have broadened into areas such as Securities, antitrust, and even employment discrimination. International business issues are also frequently resolved using arbitration.

Types of Arbitration

There are many different types of commercial arbitration. Some cases are conducted under arbitration rules established by various organizations and trade associations, while others are conducted without such rules. Although most cases are arbitrated pursuant to voluntary agreement of the parties, certain types of dispute are submitted to arbitration by reason of particular laws. It is recognized that there is a long-established practice in some types of arbitration for the arbitrators who are appointed by one party, acting alone, to be governed by special ethical considerations. Those special considerations are set forth in the last section of the code, headed “Ethical Considerations Relating to Arbitrators Appointed by One Party. [3]

High/Low Arbitration: Arbitration, whether done with a high/low figure or without, is final and binding with no right of rehearing or appeal in any forum or court. High/Low arbitration is the most popular method of arbitration. High/Low arbitration will ensure that regardless of what the arbitrator finds, the injured party will not leave the proceeding with less than the low and, of course, with no more than the stipulated high.

The arbitrator must be isolated from the high/low figures. The arbitrator will not be made aware of these figures (before the hearing, during the hearing, or after the hearing). The arbitrator must remain objective. Not knowing the high/low will enable the arbitrator to be completely candid in rendering a decision.

Standard Arbitration: Another option for binding arbitration is Standard Arbitration. With this method, there are no high/low perimeters agreed upon and documented in the arbitration agreement prior to the hearing. The decision is made with regard to the award will be the amount given to the injured party.

No Appearance Arbitration: No appearance arbitration is a very popular method in which the arbitrator renders a decision simply on the evidence that is submitted alone and neither party will make a personal appearance.[4]

Binding Arbitration: A “binding” arbitration generally means that the winning party can take an arbitration award to a court of law and enforce it if the losing party does not comply with the terms of the decision. The parties agree to waive their right to go to court for a judicial decision which is binding by the arbitrators ruling.

Non-Binding Arbitration: The parties have the discretion to abide by the arbitrator’s decision or seek other venues. In my 20 plus years of arbitration experience this is the least appealing and successful form of arbitration; only the attorneys and arbitrator make money, and the parties rack up the venue bills. “Non-binding” arbitration refers to a situation where the parties agree to use arbitration as a forum to try to resolve their differences, but neither party is bound to comply with any decision by the arbitrator.[5]

Court Appointed Arbitration: Is just that ordered by the court. The judge elects an arbitrator of their choice to hear and render a ruling – which by the way is binding.

And finally, we come to what I invented and strongly advocate as a business model…

Independent Arbitration: Some have connected this form of arbitration with names like dispute resolution, ADR, debt settlement, debt arbitration and debt negotiating to name a few.  However, with this type of arbitration you will notice vast differences. With this type of arbitration we represent only one party (usually the defendant if it happens to be a litigation case). We do not stay neutral in the dispute, but rather work as a fiduciary, representing our client to achieve out of court settlement, IRS tax issues and delinquent accounts payable.  [6]

Labor Arbitration

Wage and other labor disputes are commonly resolved through binding arbitration.  Labor unions have embraced the arbitration process for at least the last 100 years. Arbitration has been made a key facet of federal labor policy by the Supreme Court. Organizations such as Major League Baseball, the NBA and others settle disputes with players through an arbitration process.

Judicial Arbitration

Arbitration over child custody and other family law disputes can by ordered by some state courts.  Although not binding, the arbitration process is used as a first step in resolving such disputes.[7]

Voluntary Arbitration

Voluntary Arbitration is a binding, adversarial dispute resolution process in which the disputing parties choose one or more arbitrators to hear their dispute and to render a final decision or award after an expedited hearing. Voluntary arbitration implies that the two contending parties, unable to compromise their differences by themselves or with the help of mediator or conciliator, agree to submit the conflict/ dispute to an impartial authority, whose decisions they are ready to accept. In other words, under voluntary arbitration the parties to the dispute can and do they refer voluntarily and dispute to arbitration before it is referred for adjudication. This type of reference is known as “voluntary reference”, for the parties themselves volunteer to come to a settlement though an arbitration machinery. [8]

Role of Arbitrator

Reasonable and just processes for resolving disputes are indispensable in our society. Commercial arbitration is an important method for deciding many types of disputes. In order for commercial arbitration to be effectual, there must be broad public confidence in the integrity and fairness of the process. Therefore, an arbitrator has a job not only to the parties but also to the process of arbitration itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved. Accordingly, an arbitrator should recognize a responsibility to the public, to the parties whose rights will be decided, and to all other participants in the proceeding. The provisions of this code should be construed and applied to further these objectives.

 It is inconsistent with the integrity of the arbitration process for persons to solicit appointment for themselves. However, a person may indicate a general willingness to serve as an arbitrator. . Persons should accept appointment as arbitrators only if they believe that they can be available to conduct the arbitration promptly.

 After accepting appointment and while serving as an arbitrator, a person should avoid entering into any financial, business, professional, family or social relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality or bias. For a reasonable period of time after the decision of a case, persons who have served as arbitrators should avoid entering into any such relationship, or acquiring any such interest, in circumstances which might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of the relationship or interest.[9]

 Arbitrators should conduct themselves in a way that is fair to all parties and should not be swayed by outside pressure, by public clamor, by fear of criticism or by self-interest. When an arbitrator’s authority is derived from an agreement of the parties, the arbitrator should neither exceed that authority nor do less than is required to exercise that authority completely. Where the agreement of the parties sets forth procedures to be followed in conducting the arbitration or refers to rules to be followed, it is the obligation of the arbitrator to comply with such procedures or rules.

The ethical obligations of an arbitrator begin upon acceptance of the appointment and continue throughout all stages of the proceeding. In addition, wherever specifically set forth in this code, certain ethical obligations begin as soon as a person is requested to serve as an arbitrator and certain ethical obligations continue even after the decision in the case has been given to the parties.

Impartiality or independence of arbitrator

It may seem impudent even to ask if arbitrators must be impartial, as surely the answer is Obvious. After all, English arbitration has long had a reputation for being fair, impartial and transparent. The high standing of English law and those administering it, including arbitrators, has made London the centre of international arbitration, including maritime arbitration. However, to sustain this reputation, it is necessary for arbitrators, as well as judges, to be vigilant and ensure they remain free from bias and prejudice of all hues.

With the increasing importance of mediation and other forms of dispute resolution an adjudicator (and presumably an arbitrator) should ensure that they have the clear agreement of the parties to their continuing in office if they act as mediator. It will in most cases be desirable to appoint someone other than the adjudicator or anyone else connected with the dispute to act a mediator to avoid accusations of bias arising from information disclosed in confidence as part of the mediation process.

In the majority of cases – and, in particular, in a maritime and trade arbitration context – most arbitrators are already well aware of the need to be impartial and for justice to be seen to be done. In the relatively specialized world of most trade disputes, traders will welcome the experience and expertise that arbitrators bring to their understanding of the issues, but it remains incumbent upon arbitrators to be careful to ensure that the appearance of any bias is avoided. That means considering the point at the outset, as well as avoiding post appointment.