What should one be looking for when choosing an arbitrator? Obviously you should be searching for someone who can be persuaded to find in your favor. At the same time, remember that after their appointment arbitrators are required to (and history suggests most do) remain entirely neutral.
Accordingly, one should seize any opportunity presented to interview candidates carefully – not only to explore any potential conflicts, but also to gauge how the candidate’s past experiences might impact his reaction to your issues and, importantly, how well you seem to relate to the candidate. In any event, before making your choice background information should be sought from other sources for any circumstance that might give you, your firm and your client (or, of course, your opponent) added credibility with the candidate.
The arbitration clause in your client’s contract determines the latitude you will enjoy in this process. Unless the agreement specifies the appointment process, you may just receive a list from the administrating agency (be it the AAA, the Conflict Prevention and Resolution (“CPR”), or The International Chamber of Commerce (“ICC”)) from its list of suggested panelists, accompanied by a resume and a preliminary response to potential conflicts.
On the other hand, many arbitration clauses empower each party to select an arbitrator, with the parties’ arbitral choices (in consultation with the attorney and client who chose them) interviewing and selecting another person to become chair of the panel. In this instance, your party should look for an arbitrator to appoint with sufficient breath of experience to be able to suggest and help choose a good chairperson for the panel, a person hopefully who particularly relates well to and respects your chosen arbitrator.
Not only should you seek someone who might be receptive to your arguments, you must select someone you believe can successfully persuade the other two lawyers on the panel on the key issues in dispute. Seek a consensus builder, one who has the respect of his or her peers. Examine his resume in that respect. During your interview, relevant questions might well include whether the outcomes of his past arbitration service were unanimous or, if not, whether the candidate was in the majority camp. In this regard, the question sometimes arises whether to select a former judge as an arbitrator for a panel. Judges are experienced “deciders”, but are not often seen as “persuaders”, unless you find that element to be present during your investigation.
Ultimately, each member of the panel must himself be satisfied and persuaded by the evidence and arguments to rule for you on the issues; however, that requirement only renders the initial investigation for a candidate you believe will be receptive to your case and persuasive to others on the panel that much more important.