Conflicts of interest
Before an arbitrator can be hired, whether for private or court annexed arbitration, the arbitrator needs to know whether the arbitrator has any relationships which could constitute conflicts of interest - or more accurately in the context of arbitration, which pursuant to Codes of Ethics must be disclosed so as to avoid any appearance of lack of neutrality. So, when you contact me about serving as an arbitrator
, let me know:
Who are the parties?
Who will be directly affected by the outcome?
Who are the main witnesses for each side?
Do not tell me the specifics of the dispute until I have determined whether I have any conflicts of interest. Inquiring whether I am available as an arbitrator is not a means to disqualify me from continuing to represent my existing clients.
Once I know the answers to these questions, I will disclose to the parties my relationships to any of those people. If I consider those relationships (if any) to make me unable to render an impartial decision, I will decline the appointment. Once you are aware of the relationships, you can evaluate whether there is a substantial question as to the appearance of lack of impartiality. It is beneficial to you to provide that information early in the process, because it could be costly to you if part way through the process it develops that I have a relationship with a witness (which I will disclose as soon as I am aware of the identity of the witness) which impairs my ability to be impartial or creates the appearance of lack of impartiality.
In court annexed arbitration, it may be that I am appointed by the court prior to having all the necessary information, in which case I will request the parties to provide that information to me shortly after the appointment, and, I will resign if there are conflicts, in which case the court will appoint another arbitrator.
ACTUAL HIRING OF THE ARBITRATOR
Court Annexed Arbitration
In court annexed arbitration, my status as arbitrator commences once I am appointed by the court. No further agreement is necessary.
Private arbitration through an arbitration service provider
In contractual arbitration under the rules of a private arbitration service provider, my status as arbitrator commences once I am appointed by the arbitration service provider or once I am selected by the parties in accordance with the arbitration service rules. Depending on the rules of the provider, the provider or I may require the parties to sign a written agreement confirming my status as the arbitrator, perhaps with provisions relating to compensation.
Private ad hoc arbitration
When you hire me as an arbitrator directly, my status as the arbitrator commences once all the parties to the arbitration sign a contract appointing me arbitrator with terms describing a) the scope of the matters to be considered in the arbitration, b) the procedures to be followed in the arbitration, and c) the compensation of the arbitrator.