Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators

Electronic copy available at: http://ssrn.com/abstract=2519196

2014

Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators Legal Studies Research Paper Series

Paper Number 2014/30

Thomas J. Stipanowich and Zachary P. Ulrich


395

ARBITRATION IN EVOLUTION: CURRENT PRACTICES AND

PERSPECTIVES OF EXPERIENCED COMMERCIAL ARBITRATORS

Thomas J. Stipanowich* and Zachary P. Ulrich**

TABLE OF CONTENTS

I. INTRODUCTION ....................................................................................... 396

II. SURVEY GROUP PROFILE...................................................................... 401

A. Age ........................................................................................................ 401

B. Gender ................................................................................................... 402

C. Professional Backgrounds ..................................................................... 404

D. Length and Depth of Experience as Arbitrator ..................................... 405

E. Current Professional Status and Activity .............................................. 410

F. Motivations for Service as Arbitrator ................................................... 417

III. SCOPE OF ARBITRATION PRACTICE .................................................. 419

A. Practice as an Arbitrator in International Disputes ............................... 419

B. Areas of Arbitrator Practice .................................................................. 423

C. Experience as Sole Arbitrator ............................................................... 424

D. Tripartite Arbitration ............................................................................. 425

E. Appellate Arbitration ............................................................................ 428

F. Ad Hoc Arbitration and Non-Administered Arbitration Rules ............. 429

G. Streamlined or “Fast Track” Arbitration ............................................... 434

H. “Baseball” or Final Offer Arbitration.................................................... 436

I. “Bracketed” Awards.............................................................................. 437

J. Emergency Arbitration .......................................................................... 438

K. Multi-Disciplinary Panels ..................................................................... 439

IV. PRE-HEARING MANAGEMENT ............................................................. 444

A. Tailoring Arbitration Procedures .......................................................... 445

B. Dispositive Motions .............................................................................. 448

C. Management of Discovery .................................................................... 450

* William H. Webster Chair in Dispute Resolution and Professor of Law, Pepperdine

University School of Law; Academic Director, Straus Institute for Dispute Resolution.

Thanks to the College of Commercial Arbitrators and members of its Executive

Committee (Tyrone Holt, Edna Sussman and Eugene Farber) for their support in making

possible the College of Commercial Arbitrators – Straus Institute for Dispute Resolution

Survey on Arbitration Practice (2013), including a related grant. Thanks also to Tiffani

Willis, Research Librarian, Pepperdine University School of Law and Hao Wu,

Pepperdine School of Law LL.M. in International Commercial Arbitration, 2014 for their

research efforts.

** Research Fellow, Straus Institute for Dispute Resolution, Pepperdine School of

Law. B.A., B.S. (2007) American University, Washington, D.C.; J.D., M.A. Clinical

Psychology, Master of Dispute Resolution (2013) Pepperdine University, Malibu, CA.


396 THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION [Vol. 25

V. HEARING MANAGEMENT ..................................................................... 452

VI. DELIBERATING AND RENDERING ARBITRATION AWARDS ........ 454

VII. ARBITRATION AND SETTLEMENT ..................................................... 456

A. Frequency of Settlement ....................................................................... 456

B. Concern with Informal Settlement ........................................................ 459

VIII. BRANCHING OUT: OTHER INTERVENTION ROLES ...................... 461

A. Non-Binding or Advisory Arbitration ................................................... 461

B. Early Neutral Evaluation, Case Assessment ......................................... 461

C. Mediation .............................................................................................. 462

D. Med-Arb ................................................................................................ 463

IX. PROVIDER ORGANIZATIONS ................................................................ 465

A. Current Efforts of Arbitration Service Providers .................................. 465

B. Areas for Further Improvement ............................................................ 467

X. TRENDS AFFECTING DOMESTIC (U.S.) ARBITRATION

PRACTICE .................................................................................................. 469

XI. PERCEIVED DIFFERENCES BETWEEN U.S. AND

INTERNATIONAL ARBITRATION PRACTICE ..................................... 475

XII. LOOKING FORWARD ............................................................................. 477

XIII. CONCLUSION: KEY INSIGHTS FROM THE CCA/STRAUS

INSTITUTE SURVEY ON ARBITRATION PRACTICE ....................... 478

I. INTRODUCTION

Today, arbitration enjoys wide and increasing use as a method of resolving

international disputes between corporations, nation-states, and individuals.1 It

remains an important alternative to litigation of domestic business disputes in the

United States and other countries2 and is the primary method of adjudicating

international commercial disputes.3

1 See Thomas J. Stipanowich, Reflections on the State and Future of Commercial

Arbitration: Challenges, Opportunities, Proposals, infra in this issue of THE REVIEW, at

297, 298-301 [hereinafter Stipanowich, Reflections] (providing commentary on and

analysis of much of the data presented in this article); NIGEL BLACKABY ET AL., REDFERN

AND HUNTER ON INTERNATIONAL ARBITRATION 1 (5th ed. 2009) [hereinafter REDFERN &

HUNTER]. 2 See, e.g., Thomas J. Stipanowich & Ryan Lamare, Living with ADR: Evolving

Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000

Corporations, 19 HARV. NEGOTIATION L. REV. 1, 44-51, 62-67 (2013) (discussing use of

arbitration by major corporations). 3 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 94 (2d ed. 2014);

REDFERN & HUNTER, supra note 1, at 1.

2014] ARBITRATION IN EVOLUTION 397

Moreover, growing numbers are seeking to promote themselves as advocates

specializing in arbitration or as “professional” arbitrators. In the U.S., the

paradigm of the commercial arbitrator has evolved from an occasional volunteer

activity into a full-time or part-time occupation.4 The growth of professionalism

is also reflected in the establishment of organizations such as the College of

Commercial Arbitrators (“CCA”), founded in 2001, which is now comprised of

many of the most experienced arbitrators in the United States.

Similar developments are being observed worldwide. In a recent address, the

Chief Justice of Singapore noted the “explosive growth in the number of new

entrants to the global arbitration community, many from diverse legal traditions.”5

This rapidly expanding community is feeding the development of, and being

fed by, a bewildering array of professional conferences and symposia, new

academic programs offering opportunities for in-depth study,6 and burgeoning

international moots.7 Through listservs8 and blogs,9 growing thousands

4 See Stipanowich, Reflections, supra note 1, at 374-76. See Linda J. Demaine &

Deborah R. Hensler, “Volunteering” to Arbitrate Through Predispute Arbitration Clauses:

The Average Consumer’s Experience, 67 LAW & CONTEMP. PROBS. 55, 56 (2004). 5 Sundaresh Menon, Some Cautionary Notes for an Age of Opportunity, Keynote

Address at the Chartered Institute of Arbitrators International Arbitration Conference,

Penang, Aug. 22, 2013, at 3. Shaun Lee, Chief Justice Menon’s Keynote Address to CIArb

International Arbitration Conference, Aug. 28, 2013, available at http://singapore

internationalarbitration.com/2013/08/28/chief-justice-menon-keynote-address-to-ciarb-

international-arbitration-conference. 6 For example, the Straus Institute for Dispute Resolution, Pepperdine University

School of Law, in addition to its LL.M. in Dispute Resolution, now offers an LL.M. in

International Commercial Arbitration. Examples of other relevant LL.Ms. include

programs sponsored by the University of Miami School of Law; Geneva Law School &

Graduate Institute of International and Development Studies (Geneva LL.M. in

International Dispute Settlement (MIDS)); American University Washington College of

Law (LL.M. in International Commercial Arbitration Specialization); New York

University School of Law (LL.M. in International Business Regulation, Litigation and

Arbitration); Columbia Law School (Center for International Arbitration provides

extensive arbitration curricula to LL.M. and J.D. candidates); and Queen Mary School of

Law (Comparative and International Dispute Resolution led by School of International

Arbitration). 7 See Gabriël A. Moens, The Mysteries of Problem-based Learning: Combining

Enthusiasm and Excellence, 38 U. TOL. L. REV. 623, 629 (2007) (“The prestigious Willem

C. Vis International Commercial Arbitration Moot trains leaders of tomorrow in the

principles of international trade law and arbitration law”). 8 See, e.g., Oil-Gas-Energy-Mining-Infrastructure Dispute Management Listserv, at

[email protected]; Mediation and Arbitration Forum listserv, at mediate-and-

[email protected]. In addition, Juris Arbitration Law provides a subscription-

based database providing all kinds of materials related to international commercial

arbitration, available at http://www.arbitrationlaw.com. 9 See, e.g., Kluwer Arbitration Blog, http://kluwerarbitrationblog.com (last accessed

Oct. 16, 2014); Young ICCA Blog, http://www.youngicca-blog.com (last accessed Oct.

16, 2014); and blogs operated by law firms with substantial arbitration practice such as


communicate online, en masse, on a daily basis, sharing perspectives on diverse

issues of arbitration law and practice. These latter platforms avail every self-

styled arbitrator or arbitration practitioner of a never-ending stream of information

and free-flowing commentary, as well as a wide-open platform for personal

expression.

In light of all of these developments, it is surprising that there has never been

a wide-ranging, thoroughgoing survey of practices and perspectives among

experienced commercial arbitrators. An important opportunity to help fill this gap

was afforded in connection with an invitation to Professor Stipanowich to prepare

and present a report on the present and future of commercial arbitration for the

CCA in the fall of 2013.10 The resulting CCA/Straus Institute for Dispute

Resolution Survey on Arbitration Practice (“CCA/Straus Institute Survey” or

“Survey”) was conducted under the umbrella of the Straus Institute’s Theory-to-

Practice Research Project. The CCA/Straus Institute Survey consisted of 65

multiple-choice and short-answer questions on respondents’ arbitration

experiences and opinions on arbitration practices and the future of the arbitration

field-at-large. The Survey was sent electronically to 212 individuals, all CCA

Fellows, of whom 134 individuals (63.2% of the subject pool) completed the

survey instrument. The great majority of the respondents claimed experience with

both U.S. domestic11 and international arbitrations,12 and the Survey included

questions pertaining to both. Moreover, although the heavy emphasis of

Herbert Smith Freehills Dispute Resolution Blog, http://hsfnotes.com/arbitration (last

accessed Oct. 16, 2014); Arbitration Nation Blog, http://arbitrationnation.com (last

accessed Oct. 17, 2014). 10 Professor Stipanowich’s resulting report, Reflections on the State and Future of

Commercial Arbitration: Challenges, Opportunities, Proposals will be frequently

referenced throughout this article. See generally Stipanowich, supra note 1. 11 The term “domestic arbitration” was defined in the Survey as “arbitrations in the

U.S. between U.S. parties that would not normally be characterized as international.” It

should be noted that this definition, which was adopted for the sake of convenience, is not

entirely consistent with the criteria set forth in the U.S version of the New York

Convention, which states:

An arbitration agreement or arbitral award arising out of a legal relationship,

whether contractual or not, which is considered as commercial, including a

transaction, contract, or agreement described in section 2 of this title, falls under

the Convention. An agreement or award arising out of such a relationship which

is entirely between citizens of the United States shall be deemed not to fall under

the Convention unless that relationship involves property located abroad,

envisages performance or enforcement abroad, or has some other reasonable

relation with one or more foreign states. For the purpose of this section a

corporation is a citizen of the United States if it is incorporated or has its

principal place of business in the United States.

9 U.S.C. § 202 (2012). 12 See infra Part III.A. for references to respondents’ experiences arbitrating

international cases.


respondents’ arbitration practice is on business disputes, they also reflect

experiences with arbitration involving employees and consumers.13

As an exposition of the data gleaned from the CCA/Straus Institute Survey,

this article is presented as a companion piece to Professor Stipanowich’s report,

Reflections on the State and Future of Commercial Arbitration: Challenges,

Opportunities, Proposals.14 The Reflections provide context and an analytical

framework for much of the data summarized in the following pages.

We acknowledge the limitations of the present effort, and offer several

caveats respecting the data presented here. First of all, in surveys of this kind

respondents may be tempted to provide answers that enhance perceptions of

themselves or to “fake good” – that is, to provide what they regard as a desired or

personally favorable response – even though results are anonymized. Thus, they

might inflate their level of experience or make statements regarding their practices

or perceptions tailored to the purpose of bringing themselves into line with what

they perceive to be accepted or desirable conventional norms.15 In constructing

the Survey we took a number of steps to address concerns about “faking good.”16

Second, individuals who practice as arbitrators are often very busy people,

and their responses may be flawed by inattention. In a rushed world where multi-

tasking is the norm, it should be expected that some arbitrators may not have had

13 See infra text Part III.B. Because this Survey was developed in connection with

Professor Stipanowich’s treatment of the state and future of commercial (B2B) arbitration,

it was primarily intended to elicit information directly relevant to current issues and

concerns in that sphere. See supra note 1. However, there is no question that because

some of the Survey respondents were also engaged in arbitration pursuant to

agreements that are in various respects “adhesive” with respect to consumers or

employees, some of the Survey data may be relevant to considerations of the due process

concerns of such individuals. See infra note 130, discussing concerns associated with

early disposition of cases during arbitration. That being said, the strong focus of this

exposition is on arbitration of commercial cases. 14 See Stipanowich, supra note 1. 15 See, e.g., THOMAS R. BLACK, DOING QUANTITATIVE RESEARCH IN THE SOCIAL

SCIENCES: AN INTEGRATED APPROACH TO RESEARCH DESIGN, MEASUREMENT AND

STATISTICS 223 (1999) (discussing how “faking . . . a good . . . overall impression . . . is a

serious problem . . . when the intent of [Survey] items is rather transparent”). 16 In an effort to discourage “faking good,” the authors attempted to phrase Survey

questions so as to minimize any potentially evinced prejudices or connotations regarding

the answers respondents might provide. For instance, when asking about the number or

value of cases respondents had arbitrated throughout their careers, questions were phrased

succinctly and without any regard to any connotation of professional “success” or

“failure” that respondents might otherwise assume the questions were meant to gauge.

Another potentially confounding factor of any survey study is “order-effect bias,”

where respondents’ answers may be affected by the order in which they have been asked

previous questions before giving a particular response. See William D. Perreault,

Jr., Controlling Order-Effect Bias, 39 THE PUB. OPINION Q. 544, 544-51 (1975). In order

to control for the order-effect bias, questions asking respondents to give answers to

multiple, related prompts were randomized for each respondent.


the time, or been sufficiently focused, to carefully read the questions presented or

reflect upon their answers.

Third, it is clear that when it comes to perceptions of what they do and how

they do it, the views of dispute resolution professionals may differ markedly from

those of the business parties and legal advocates with whom they interact. It

would, of course, have been even better to have canvassed the views of all these

stakeholders. However, given the opportunity to have the assistance of colleagues

at the College of Commercial Arbitrators to encourage members – all experienced

arbitrators – to share wide-ranging, in-depth information, we could not pass up the

opportunity.

Finally, we are not in a position to say that the data obtained from the group of

experienced, relatively well-known arbitrators who were subjects of the Survey

are representative of commercial arbitrators in general, or the full range of

individuals who perform arbitration services of different kinds in the U.S.17

Despite all of these limitations, we hope that the present Survey will serve as a

general foundation or starting point, if not a baseline, for future empirical efforts.18

During the course of this exposition we suggest a number of subjects warranting

more intense scrutiny.

Part II of this article offers a detailed profile of the experienced arbitrators

who responded to the Survey, including information on age, gender, professional

backgrounds, length and depth of experience in arbitral roles, extent of current

professional activity, and perceptions regarding the sufficiency of arbitrator work.

Part III provides an extensive look at the scope of the group’s collective arbitrator

practice, including practice as an arbitrator in international cases; kinds of disputes

arbitrated; and experience with a variety of arbitration variants including: single-

arbitrator proceedings, tripartite arbitration involving party-appointed arbitrators,

appellate arbitration, ad hoc arbitration and arbitration under non-administered

arbitration rules, streamlined or “fast track” arbitration, “baseball” or final offer

arbitration, arbitration with “bracketed” awards, emergency arbitration

procedures, and multi-disciplinary tribunals. Part IV explores the rich array of

techniques reflecting more proactive pre-hearing management by experienced

17 For a sense of the broad spectrum of activity that falls under the expansive, diverse

rubric of “arbitration,” see JAY FOLBERG, DWIGHT GOLANN, THOMAS J. STIPANOWICH &

LISA KLOPPENBERG, RESOLVING DISPUTES: THEORY, PRACTICE & LAW Ch. 15 (2d ed.

2010) [hereinafter RESOLVING DISPUTES]. 18 Another, parallel empirical study is the International Academy of Mediators/Straus

Institute Survey on Mediator Practices and Perceptions, conducted in 2014. The

IAM/Straus Institute Survey was sent to 153 individuals, all IAM Fellows, and 85.0%

(130 individuals) participated in the survey; 78.4% (120 individuals) completed the entire

survey. The respondent pool included individuals who stated they “regularly practiced” in

Africa; Asia, including the Middle East; Australia and New Zealand; Canada; Europe

(both Western and Eastern, with a majority from the UK); Latin America; and the United

States. These and other data from the IAM/Straus Institute Survey will be published in

Thomas J. Stipanowich & Zachary P. Ulrich, The New Age of Mediation: Current

Perspectives and Practices of Experienced Mediators (article in progress).


arbitrators, including strategies for addressing dispositive motions and pre-hearing

discovery, while Part V summarizes many approaches used in the management of

hearings. Part VI highlights practices and perspectives regarding adherence to

legal standards and other key issues associated with arbitrator deliberation and

award-making. Part VII touches on recent increases in the incidence of settlement

during arbitration proceedings and a variety of topics associated with this rarely

treated subject. Part VIII considers respondents’ experiences playing other third-

party roles in dispute resolution, including rendering non-binding or advisory

arbitration decisions, engaging in early neutral evaluation or early case

assessment, and serving as a mediator. Part IX examines perceptions of the

efforts of institutional arbitration service providers to improve or maintain the

quality of arbitration services and user satisfaction with arbitration. Part X

explores respondents’ expectations regarding trends potentially affecting

arbitration practice. Part XI briefly touches on perceived differences between

U.S. and international arbitration practice, and Part XII offers respondents’

forecasts of the usage of various ADR processes in the coming decade.

II. SURVEY GROUP PROFILE

The CCA/Straus Institute Survey portrays a group of experienced arbitrators

who by and large are “elders.”19 They are virtually all members of the legal

profession – an apparent reflection of the dominance of lawyers in arbitration and

the growing legal orientation of arbitration.20 They are overwhelmingly male,21

although there are signs that women, who are gradually moving up through the

ranks of legal professionals, are increasingly developing successful careers as

arbitrators.22 They tend to have considerable experience as arbitrators.23 Finally,

although they depend on arbitral appointments to provide them with revenue or

other tangible benefits, if only a continuing sense of purpose in retirement,24 most

of them think they don’t have enough work.25

A. Age

Subjects were given the option of whether or not to indicate their birth year;

109 individuals did so. At the time the Survey was administered, respondents

varied in age between 49 and 88 – a four-decade range. Their average age was

almost 69 (68.7); their median age was 67.26 As reflected in Chart A below,

19 See infra Part II.A. 20 See infra Part II.C. 21 See infra Part II.B. 22 See infra text accompanying notes 52-55, Charts F, H. 23 See infra Part II.D. 24 See infra Part II.F. 25 See infra Part II.E. 26 These results were obtained by taking the difference between the year of Survey

administration (“2013”) and the year of birth indicated by respondents. Of the 110 respondents

answering the question, 109 provided calculable numerical answers that were used.


40.0%27 of respondents indicated that they were between the ages of 61 and 70

inclusive, and an even greater number (46 individuals, or 41.8%) were 71 or older.

Only one individual was fifty years of age or younger.

Chart A. Arbitrator Age

The data indicate that these experienced arbitrators are virtually all beyond the

median age of practicing lawyers.28 More than 70% of them are 65 or older, as

compared to only 13% of licensed attorneys.29 Because recognition as a Fellow of

the CCA is normally accorded to arbitrators who have been in practice for some

time, this is not a great surprise. The results support the conclusion that arbitrators

are often selected from senior ranks of professionals. Moreover, as indicated

below, such individuals often carry on their activities as arbitrators for decades.30

B. Gender

Respondents were given the option of indicating their gender; 123 individuals

did so. As shown in Chart B, an overwhelming majority (84.6%) represented that

they were male; only 15.4% were female.

27 All Survey data presented in this piece have been rounded to the nearest tenth-place

decimal. 28 As of 2005, the median age of licensed lawyers was 49 years of age. American Bar

Association, Lawyer Demographics (2013), available at http://www.americanbar.org/

content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2013.

authcheckdam.pdf. 29 See id. (summarizing data from 2005). 30 See infra text accompanying notes 45-48.

0.0% 0.0%

0.9%

(1)

16.4%

(18)

40.0%

(44)34.5%

(38)

7.3%

(8)

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

30 or less 31-40 41-50 51-60 61-70 71-80 81+

38%

(42)


Chart B. Arbitrator Gender

Q: What is your gender?

These data are representative of the overall membership of the surveyed population, the membership of the CCA.31 They are also broadly consistent with other recent data reflecting the relative paucity of females among the ranks of practicing arbitrators.32 The data reinforce the conclusion that the representation of women in this arena lags well behind the overall representation of women within the legal profession.33

Among those female respondents who reported both their gender and their age, the average age was 62.8 years old, almost six years younger than the average for the entire respondent pool34 and 6.7 years younger than the average age of their male counterparts.35 Not one female respondent reported being over 71 years of age,36 a truly remarkable fact when one considers that, as mentioned above,

31 At present, the CCA consists of 234 members, of which 36 are female. The latter

represent 15.4% of the total membership. E-mail of Bill Seward, CLE Resolutions, to Thomas J. Stipanowich (Aug. 7, 2014).

32 See, e.g., Deborah Rothman, Gender Diversity in Arbitrator Selection, 18 DISP. RESOL. MAG. 22 (2011-2012) (2010 report from American Arbitration Association indicates that women represented 25% of the AAA’s “National Roster,” and were appointed in only 15% of cases involving large monetary claims); Cynthia Alkon, Women Labor Arbitrators: Women Members of the National Academy of Arbitrators Speak About the Barriers of Entry into the Field, 6 APPALACHIAN J. L. 195, 196 (2007) (women represent 15% of the roster of the National Academy of Arbitrators, a leading organization of labor arbitrators).

33 As of 2005, 30% of licensed lawyers were women. See supra note 28. Again, this professional comparison is offered in light of the fact that virtually all of the respondents in our Survey reported legal professional backgrounds. See infra Part II.C.

34 See supra text accompanying note 26. 35 The average age of those respondents who indicated their age and also indicated

that they were “male” was 69.5 years old. 36 Of the four oldest female respondents, one reported being 71 years old, and another

three, 67 years old.

84.6%

(104)

15.4%

(19)

Female

Male


more than 41.8% of all CCA/Straus Institute Survey respondents indicated that they were 71 or older!37

A partial explanation for these realities lies in the history of the U.S. legal

profession, which (as explained below) is the background of nearly all the

respondents to the Survey. As recently as 1980 – a date by which many, if not

most, of our female survey respondents had probably graduated from law school –

only about 8% of licensed attorneys in the U.S. were female.38 A decade earlier,

only 4% of attorneys were women.39 In light of these statistics and the formidable

barriers they represented to the admission and advancement of women in the legal

profession, one might consider it worthy of note that even 15.4% of fifty- and

sixty-something experienced arbitrators who are recognized by their peers as CCA

“Fellows” are women. If the CCA data are any indication, women are beginning

to break through the glass ceiling in commercial arbitration, but they are still a

long way from parity with their male colleagues.

C. Professional Backgrounds

The Survey results depict a cadre of arbitrators with varied professional

specialties, but nearly always as lawyers and judges. Chart C shows that the great

majority (81.9%) of respondents reported having “litigation” backgrounds. About

three in ten (28.3%) claimed experience as transactional attorneys, and 9.4% as

judges.40 Although two individuals reported having “non-legal” backgrounds,

only one lacked experience as an attorney.

Chart C. Professional Background

Q: How would you characterize your professional background?

37 See supra Chart A. 38 See supra note 28. 39 CYNTHIA FUCHS EPSTEIN, WOMEN IN LAW 5 (2d ed. 1993). 40 Respondents were given the option to identify more than one “background.”

81.9%

(104)

28.3%

(36)

9.4%

(12)1.6%

(2)

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

Attorney -

litigation

Attorney -

transactional

Judge Non-legal

background


There is no question that in this era of “judicialized” arbitration greater

emphasis has been placed on law, litigation-style lawyering and legal standards in

arbitration.41 However, given the fact that there is no legal requirement for

arbitrators to be members of the bar and, moreover, that multidisciplinary panels

have long been employed in the arbitration of construction disputes and other

kinds of controversies,42 the overwhelming hegemony of lawyer arbitrators

reflected in the Survey data, particularly those with litigation experience, is truly

surprising. Although the data are undoubtedly a reflection of the legal orientation

that has characterized the CCA from its origins,43 there is reason to believe that

today, general speaking, commercial arbitrators are more likely to be attorneys than

in former days, and that the participation of non-lawyer arbitrators is diminishing.44

One must ask, are business parties better off using all-lawyer tribunals, or are there

circumstances in which a mix of expertise may be more appropriate?

D. Length and Depth of Experience as Arbitrator

Survey participants claimed long and extensive experience serving as

arbitrators,45 as might be expected among Fellows of an organization of

experienced arbitrators. The 127 individuals who responded to the open-ended

question, “In what year did you first serve as an arbitrator?” indicated that their

first arbitration experience had occurred an average of 26.7 years prior to the

Survey; the median was 26 years.46 As indicated in Chart D,47 the great majority

41 See Thomas J. Stipanowich, Arbitration: The “New Litigation”, 2010 U. ILL. L.

REV. 1, 6-33; Alan Redfern, Stemming the Tide of Judicialization in International

Arbitration, 2-5 WORLD ARB. & MEDIATION REV. 21 (2008). 42 Thomas J. Stipanowich, Managing Construction Conflict: Unfinished Revolution,

Continuing Evolution 19 (Pepp. Univ., Working Paper No. 22, 2014), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=24 84598. 43 Professor Stipanowich was one of the founders of the CCA, along with a number of

other dispute resolution professionals with legal backgrounds. 44 See infra Part III.K. 45 Except where otherwise noted, Survey questions pertaining to participants’

individual experiences did not differentiate between “domestic” (United States-centric)

and “international” experience (beyond the United States) and thus is assumed to include

all of respondents’ professional experience worldwide. 46 These measures of central tendency were determined by taking the difference

between the year of Survey administration (“2013”) and the year respondents indicated

they first arbitrated a case. The authors used all calculable, open-ended responses (124

individuals) and excluded three responses that they were unable to interpret as an exact

year in which the subjects first arbitrated a case. 47 Chart D includes the response data of all 127 individuals who answered this open-

ended question. All responses containing information other than a numerical value (six

individuals, or 4.7% of respondents) were classified into various career-length categories.

For all responses the most conservative estimate (that is, the lowest number of years a

respondent could possibly have arbitrated, given his or her response) was used to

categorize the data.


(78.7%) of respondents reported that their first service as arbitrators was at least

two decades ago, and more than one-third (37.0%) had first arbitrated thirty years

or more before.

The data also reflect the increasing participation of female arbitrators in the

field. Of the 47 respondents who indicated they had first arbitrated at least 30

years ago, only two were female. However, ten of the 52 respondents who first

arbitrated between 20 and 29 years ago were female, and almost one-quarter (six)

of the 25 respondents who had “practiced” as arbitrators between ten and 19 years

were women.

Chart D. Years since Initial Service as an Arbitrator

As depicted in Chart E below, Survey participants tended to have arbitrated a

substantial number of cases.48 Almost two-thirds of participants (59.8%) reported

having served as an arbitrator more than 100 times throughout their career.

48 Chart E includes the response data of all 127 individuals who answered this open-

ended question. All responses containing information other than a numerical value (29

individuals, or 22.8% of respondents) were classified into various categories. For all

responses the most conservative estimate (that is, the least number of times a respondent

could possibly have arbitrated given his or her response) was used to categorize the data.

1.6%

(2)

18.9%

(25)

41.7%

(52)

23.6%

(30)

13.4%

(17)

0.8%

(1)

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

1 – 9 years 10 – 19

years

20 – 29

years

30 – 39

years

40+ years Don't

Know,

Other, N/A


Chart E. Total Cases as an Arbitrator

Q: How many times have you served as an arbitrator during your entire career?

The average number of reported cases was 292; the median was 175.49 The

group average was dramatically skewed by the reported experiences of a handful

of individuals who claimed to have arbitrated more than 500 cases.50 For this

reason, the median figure of 175 arbitrated cases appears to be more

representative of the group as a whole.

49 These results were obtained by using all calculable, open-ended responses (121

individuals) and exclude six responses that the authors were unable to interpret as an

approximate number of cases arbitrated. 50 The ten respondents who reported they had arbitrated over 500 cases were

contacted by the authors for the purpose of ascertaining more information about their

experience as arbitrators (including whether or not their experience included a large

percentage of cases that could be disposed of relatively quickly) and whether or not they

correctly interpreted the question. We received responses from seven of the ten. Two

individuals acknowledged that they had overstated their estimated arbitration experience

and dramatically reduced their estimates. (Chart E above includes their data based on their

amended estimates.) The others offered insights into the kinds of cases they handled and

their experience with “paper hearings” (“cases by document included smaller (<$100K),

straightforward business transactions, matters where respondent didn’t defend, [cases

involving] attorney’s fees”; “I generally get appointed to 20-25 a year; most settle and a

small number may be documents[-]only”; “approximately 150 of the 650 were

documents[-]only cases”). Another explained:

In my early years many of the arbitrations were court-annexed judicial

arbitrations which, as you know, are truncated proceedings with much evidence

coming in by offer-of-proof statements and documents. I averaged five to six a

month of these for several years. A couple of years ago I did participate in

AAA’s consumer debt program, but I think I handled less than 20 [cases] before

the program ceased.

4.7% (6)

13.4% (17)

21.3% (27)

30.7% (39)

22.0% (28)

3.9% (5)

3.9% (5)

0% 5% 10% 15% 20% 25% 30% 35%

Don’t Know, Other, N/A

50 times or less

51 – 100 times

101 – 250 times

251 – 500 times

501 – 999 times

1,000+ times


Taking together the median number of cases arbitrated – 175 – and the

average number of years since the first arbitration experience – 26.7 – we arrive at

a number of 6.6 arbitrated cases per year, which may serve as a rough indicator of

the “annual caseload” of Survey respondents. However, because the time and

effort required to arbitrate different cases varies dramatically, this calculation does

not tell us a great deal about the actual workload of Survey respondents. Survey

group perceptions of arbitrator workload are addressed below.51

When these data are broken out by gender, as reflected in Chart F52 below, it

appears that, generally speaking, female arbitrators tend to have somewhat lower

overall numbers of experiences as arbitrators than their male counterparts. A

higher percentage of females reported having arbitrated “50 times or less” and a

higher percentage of males reported arbitrating 101-500 times.

Chart F. Total Cases as Arbitrator (By Gender)

Q: How many times have you served as an arbitrator during your entire career?

51 See infra text accompanying notes 60-63, Charts M, N, O and P. 52 Nineteen of the respondents who answered this question also indicated they were

female, while 105 of the respondents also indicated they were male. Because there were

so few females in the sample, one consideration for this and all subsequent gender-based

analyses is that the small sample of female arbitrators may not be representative of female

arbitrators generally.

4.8% (5)

12.4% (13)

21.9% (23)

31.4% (33)

21.9% (23)

3.8% (4)

3.8% (4)

5.3% (1)

21.1% (4)

21.1% (4)

26.3% (5)

15.8% (3)

5.3% (1)

5.3% (1)

0% 5% 10% 15% 20% 25% 30% 35%


50 times or less

51 – 100 times

101 – 250 times

251 – 500 times

501 – 999 times

1,000+ times

Females Males


Over the past decade, the typical caseload of Survey participants appears to

have increased. As shown in Chart G, 53 Survey participants indicated that over

the past ten years they had arbitrated an average of 134 cases; the median number

was 100 cases.54 Based on a median caseload of 100 cases, the annual caseload

for the past ten years is ten cases per year, as compared to 6.6 cases per year for

participants’ entire “careers” as an arbitrator.

Chart G. Cases as Arbitrator during Previous Ten Years

Q: How many times have you served as an arbitrator in the past 10 years?

When the data regarding the number of cases arbitrated during the last ten

years is segregated by gender, as shown in Chart H55 below, the distinctions

between female and male experiences appear to be less pronounced than the

corresponding differences with regard to overall numbers of cases arbitrated

during respondents’ careers (Chart F).

53 Chart G includes the response data of all 127 individuals who answered this open-

ended question. All responses containing information other than a numerical value (30

individuals, or 23.6% of respondents) were classified into the shown categories. For all

responses the most conservative estimate (that is, the least number of times a respondent

could possibly have arbitrated given his or her response) was used to categorize the data. 54 These results were obtained by using all calculable, open-ended responses (122

individuals) and exclude 5 responses (3.9% of responses) that the authors were unable to

interpret as an approximate number of cases arbitrated. 55 Nineteen of the respondents who answered this question also indicated they were

female, while 105 of the respondents also indicated they were male.

3.9% (5)

13.4% (17)

17.3% (22)

24.4% (31)

31.5% (40)

7.1% (9)

2.4% (3)

0% 5% 10% 15% 20% 25% 30% 35%


25 times or less

26 – 50 times

51 – 100 times

101 – 250 times

251 – 499 times

500+ times


Chart H. Cases as Arbitrator during Previous Ten Years (By Gender)

Q: How many times have you served as an arbitrator in the past 10 years?

E. Current Professional Status and Activity

One important aspect of the Survey effort was to collect data on subjects’

current professional work status, the percentage of their working hours devoted to

service as an arbitrator, and their subjective perceptions regarding their current

level of arbitration work. As depicted in Chart I below, of 127 individuals who

responded, almost three-fourths (74.0%) reported that they worked full-time.

3.8% (4)

13.3% (14)

17.1% (18)

24.8% (26)

30.5% (32)

8.6% (9)

1.9% (2)

5.3% (1)

15.8% (3)

21.1% (4)

21.1% (4)

31.6% (6)

0.0% (0)

5.3% (1)

0% 5% 10% 15% 20% 25% 30% 35%


25 times or less

26 – 50 times

51 – 100 times

101 – 250 times

251 – 499 times

500+ times

Females Males


Chart I. Current Working Status—Full-Time vs. Not Full-time

Q: Do you currently work full-time?

Survey respondents reflect current trends toward extended working lives.56

Of the 94 individuals who indicated they worked full-time, 53 (56.4%) were at

least 65 years of age; four of these individuals were more than 80 years old.

As shown in Chart J, 18 of the 33 individuals who indicated they did not work

full-time identified themselves as working “part-time.” The others described

themselves as being “retired” or “semi-retired”; nearly all these respondents (14 of

15) were 65 years of age or older.

56 Kelly A. Holder & Sandra L. Clark, Working Beyond Retirement-Age, U.S. Census

Bureau, Housing and Household Economics Division, Labor Force Statistics Branch,

available at http://www.census.gov/hhes/www/laborfor/Working-Beyond-Retirement-

Age.pdf (“the labor force participation rates for the population 65 years and older will

increase through 2014”).

74.0%

(94)

26.0%

(33)

Not

Full-Time

Full-Time


Chart J. Breakout of Arbitrators Not Working Full-Time

Q: How would you characterize your current professional status?

Respondents were also asked what proportion of their professional working

time (independent of their overall level of professional activity) was devoted to

practice as an arbitrator. Data collected from 126 Survey participants indicate that

respondents dedicated, on average, 58.8% of their working time to such arbitration

practice.57 As shown in Chart K,58 two-thirds of respondents (66.6%) reported

devoting at least half of their working time to service as an arbitrator; more than

one-fifth (20.6%) indicated work as an arbitrator occupied 90% or more of their

working hours.

57 As all open-ended responses were able to be interpreted as numerical responses,

these measures of central tendency included responses from all 126 individuals who

answered this question. 58 Chart K includes the response data of all 126 individuals who answered this open-

ended question. Because the question was open-ended, some respondents provided a

range (e.g., “25%-40%”) instead of just one percentage value. In those instances, the most

conservative value was used for the data shown (e.g., if someone wrote “25%-40%,” the

answer was interpreted to say “25%” so as not to overestimate any one individual’s

working time dedicated to arbitration practice).

74.0%

(94)14.2%

(18)

9.5%

(12)

2.4%

(3)

26.0%

(33)

Not Full-Time Full-Time

Part-Time

Semi-Retired /

Work

Occasionally

Retired


Chart K. Practice as Arbitrator as Percentage of Working Time

Q: What percentage of your work time is currently devoted

to practice as an arbitrator?

Chart L provides a comparison of portions of work time devoted to service as

an arbitrator between respondents employed full-time and those who were retired,

semi-retired, or working part-time.59 It is perhaps no surprise that respondents

who were retired, semi-retired, or part-time workers tended to devote relatively

high percentages of their work time to service as arbitrators. Sixteen of the 26

individuals who devoted more than 90% of their work time to service as

arbitrators were in these categories. For the most part, however, respondents

reflected a diverse array of experiences when it came to the percentage of time

they spent as arbitrators.

59 One hundred and twenty-six respondents answered all three of the questions

pertaining both to working status and percentage of workload dedicated to arbitration

practice, including 93 who indicated they worked “full-time,” 18 “part-time,” 12 who said

they were “semi-retired/work occasionally,” and three who indicated they were “retired.”

2.4%

(3)

13.5%

(17)

17.5%

(22)

15.1%

(19)

21.4%

(27)

9.5%

(12)

20.6%

(26)

0%

5%

10%

15%

20%

25%

0% 1%-25% 26%-49% 50% 51%-75% 76%-89% 90%+

Per

cen

tag

e o

f R

esp

on

den

ts

Percentage of Work Time


Chart L. Percentage of Time Devoted to Service as

Arbitrator by Work Status

One noteworthy result regarding participants’ professional statuses and

activities is that, as exhibited in Chart M, over three-fifths (57.2%) of the 126

respondents indicated they perceived the quantity of arbitration work they enjoyed

as being “[s]omewhat less work than I would like” or “a lot less work than I

would like.”60 About one-third of respondents (34.9%) described the current

quantity of their arbitration work as “sufficient” while a small number claimed to

have more work than they would like.

60 This calculation does not include three individuals who indicated they had “no work

at all.” These three individuals stated that they dedicated “0%” of their current

professional time to serving as arbitrators, which may possibly indicate that they were not

actively pursuing an arbitration practice at the time of Survey administration. One of these

individuals was retired; the other two were employed full-time.

2.2% (2)

15.1% (14)

21.5% (2)

17.2% (16)

22.6% (21)

10.8% (10)

10.8% (10)

0.0% (0)

11.1% (2)

5.6% (1)

11.1% (2)

22.2% (4)

11.1% (2)

38.9% (7)

0.0% (0)

8.3% (1)

8.3% (1)

8.3% (1)

16.7% (2)

0.0% (0)

58.3% (7)

33.3% (1)

0.0% (0)

0.0% (0)

0.0% (0)

0.0% (0)

0.0% (0)

66.7% (2)

0% 10% 20% 30% 40% 50% 60% 70%

0%

1%-25%

26% - 49%

50%

51% - 75%

76% - 80%

90%+

Retired Semi-retired / work occasionally Working part-time Working full-time


Chart M. Perceived Sufficiency of Work as Arbitrator

Q: Which of the following most accurately describes the current

quantity of your arbitration work?

Chart N compares the perceptions of respondents who worked full-time

regarding the sufficiency of their arbitrator work with those of respondents who

were retired, semi-retired, or worked part-time.61 Of those respondents who

worked full-time, 42 individuals (45.2%) indicated they enjoyed a “sufficient”

quantity of arbitration work or better, while a greater number (49, or 52.7%)

reported having “somewhat less” or “a lot less” work than they would like.

Among the respondents who were retired, semi-retired or working part-time, nine

individuals (27.2%) regarded their amount of arbitrator work as “sufficient” or

better, while 23 (69.7%) perceived the amount of work as “somewhat less” or “a

lot less” than they would like. Thus, a majority of both groups of respondents

viewed their current arbitrator work as insufficient; however, those in the

retired/semi-retired/working part-time group appeared to be much more likely to

have such perceptions. Given that the sample group was comprised of some of

the most accomplished commercial arbitrators in the United States and abroad,

this result is a compelling indicator that the growing cadre of professional

arbitrators, whether actively retired or fully employed, are facing considerable

competition for limited numbers of cases.62

61 One hundred and twenty-six respondents answered both of these questions, of

whom 93 individuals indicated that they worked “full-time” and the other 33 individuals

responded that they either worked “part-time,” were “semi-retired/worked occasionally,”

or were “retired.” 62 See Stipanowich, Reflections, supra note 1, at 374-76.

5.6% (7)

34.9% (44)

42.1% (53)

15.1% (19)

2.4% (3)

0% 5% 10% 15% 20% 25% 30% 35% 40% 45%

More work than I would like

A sufficient amount of work

Somewhat less work than I would like

A lot less work than I would like

No work at all


Chart N. Perceived Sufficiency of Arbitrator Work by Work Status

Q: Which of the following most accurately describes the current

quantity of your arbitration work?

Chart O compares the perceptions of female and male respondents regarding

sufficiency of work as arbitrator.63 Given the relatively small number of female

respondents, care must be taken in drawing conclusions from these data. That being

noted, it cannot be said that female respondents had more negative perceptions

regarding the sufficiency of their arbitrator work than their male counterparts.

Chart O. Perceived Sufficiency of Arbitrator Work by Gender

63 One hundred and twenty three respondents indicated both their gender and their

perceived workload. Of this group, 104 were male and 19 were female.

6.5% (6)

38.7% (36)

39.8% (37)

12.9% (12)

2.2% (2)

3.0% (1)

24.2% (8)

48.5% (16)

21.2% (7)

3.0% (1)

0% 10% 20% 30% 40% 50% 60%

More work than I would like

A sufficient amount of work

Somewhat less work than I would like

A lot less work than I would like

No work at all

Working part-time / Semi-retired / Retired Working full-time

0.0%

(0)

52.6%

(10)

26.3%

(5)

15.8%

(3)

5.3%

(1)

6.7%

(7)

31.7%

(33)

44.2%

(46)

15.4%

(16)

1.9%

(2)

0%

10%

20%

30%

40%

50%

60%

More work than I

would like

A sufficient amount

of work

Somewhat less work

than I would like

A lot less work than

I would like

No work at all

Females Males


A separate comparison of those male and female respondents who indicated

they worked full-time is reflected in Chart P. Although the numbers are slightly

different, the results are generally parallel to those in Chart O. It appears that

female respondents in full-time practice did not have more negative perceptions

regarding the sufficiency of their arbitrator work than their male counterparts.

Chart P. Perceived Sufficiency of Arbitrator Work by Gender;

Full-TimeWorkers

F. Motivations for Service as Arbitrator

One goal of the Straus Institute Theory-to-Practice Research Project is to

understand people’s motivations for pursuing and maintaining practice as a

dispute resolution professional. Thus, Survey subjects were asked, “Which of the

following . . . are reasons why you currently arbitrate?” and were permitted to

select among various reasons or to identify other reasons. The results are depicted

in Chart Q below, which shows that respondents’ most common motivations for

service as arbitrators are extending or expanding their professional practice and

obtaining income.

Almost as many respondents claim to be motivated by a desire to do public

service. The latter may reflect general philosophies about the importance of

arbitration as an instrument of justice, although some respondents may be alluding

to active volunteer efforts in court-connected and bar-sponsored arbitration

programs, or even acceptance of a less-than-normal fee for service as, for

example, a FINRA securities arbitrator.64

64 Stephen J. Choi et al., Attorneys as Arbitrators, 39 J. LEGAL STUD. 109, 115 (2010).

0.0%

(0)

53.3%

(8)

26.7%

(4)

13.3%

(2)6.7%

(1)

7.9%

(6)

36.8%

(28)

40.8%

(31)

13.2%

(10)

1.3%

(1)

0%

10%

20%

30%

40%

50%

60%

More work than I

would like

A sufficient amount

of work

Somewhat less work

than I would like

A lot less work than I

would like

No work at all

Full-time Females Full-time Males


Chart Q. Motivations for Service as Arbitrator

Q: Which of the following, if any, are reasons why you

currently arbitrate? Please select all that apply.

The 47 participants65 who chose “Other” were asked to specify any other

reasons why they chose to practice as arbitrators. Among those respondents, almost

three-fifths (28 respondents, or 59.6%)66 offered comments to the effect that serving

as an arbitrator was “fun,” “enjoyable” or generally “rewarding.” Another 20

individuals (42.6% of that group) indicated that service as an arbitrator was

“intellectually stimulating” or generally “interesting” and another nine (19.1%)

thought that arbitrating was a “good” or “the best” usage of their talents, abilities,

and experiences, including prior service on the bench. (“It is the closest to

continuing my work as a [j]udge following my retirement from the [b]ench.”) Eight

respondents (17.0%) stated that they arbitrate to keep them “active” and “engaged”

after retirement. Finally, four individuals (8.5%) indicated that one reason they

arbitrate is because of the “satisfaction” they obtain by “serving justice,” including

in instances where they think the “court system doesn’t work well.”

65 All responses were encoded into the categories discussed here so long as the

respondent’s intent was unambiguous and clearly fell within that category’s stated

description. Three responses (6.4% of the response sample) could not be categorized but

were still included in the stated sample size for purposes of accurately statistically

representing the response pool. In some cases, respondent statements were classified in

multiple categories. 66 Although perhaps obvious, it should be noted that there likely would have been a

higher response rate for these and other responses given by individuals who chose the

“Other” option had they been on the list of reasons included in the Survey instrument.

37.6%

(47)

82.4%

(103)

76.0%

(95)

72.0%

(90)

29.6%

(37)

50.4%

(63)

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%

Other

It is a logical extension of my professional

practice.

It is a means of increasing or maintaining

my income.

It is a form of public service to the legal

and/or business community.

It is a means of professional networking.

It is a means of enhancing my

professional reputation.


III. SCOPE OF ARBITRATION PRACTICE

A major focus of the CCA/Straus Institute Survey was the nature and breadth

of practice by Survey subjects. The Survey produced a wide range of information

regarding the experiences of respondents and, by inference, the skill sets they have

developed that should be taken into account by parties and counsel considering the

use of arbitration and the procedural choices available to them.

A. Practice as an Arbitrator in International Disputes

The flourishing of global commerce has led to the growing use of

international arbitration,67 and anecdotal evidence indicates that many U.S.

arbitrators are gaining experience arbitrating international disputes. Therefore, the

CCA/Straus Institute Survey included a series of questions intended to glean

information regarding subjects’ experience as arbitrators of international disputes.

As indicated in Chart R, a large majority of respondents (108 of 128, or 84.4%)

affirmed that they had such experience.

Chart R. Experience Arbitrating International Disputes

Q: Have you served as an arbitrator with respect to international disputes?

Those who indicated experience arbitrating an international dispute were

given a series of follow-up questions regarding their experiences with

67 See supra note 3.

84.4%

(108)

15.6%

(20)

Yes

No


international arbitration.68 Among other topics, they were asked to indicate the

number of international cases they had arbitrated in the last five years, and the

number of cases they arbitrated prior to that time. Chart S presents these data

side-by-side to permit comparison.

Chart S. Experience Arbitrating International Disputes

Q: In how many international cases have you served as

an arbitrator in the last five years?

Q: In how many international cases did you serve prior to five years ago?

As reflected in Chart S, it appears that the group of experienced U.S.

arbitrators responding to the Survey has placed increased emphasis on arbitrating

international disputes in the past five years. Fewer arbitrators report having no

international cases during that period, and higher numbers of arbitrators reported

arbitrating between one and 50 international cases.

68 Of the 108 individuals asked follow-up questions regarding their international

arbitration experiences, 107 completed all of the questions and one individual completed

none; thus, all subsequent questions on this topic were answered by 107 individuals.

1.9% (2)

3.7% (4)

46.7% (50)

15.0% (16)

19.6% (21)

10.3% (11)

0.9% (1)

1.9% (1)

7.5% (8)

11.2% (12)

43.9% (47)

11.2% (12)

14.0% (15)

6.5% (7)

2.8% (3)

2.8% (3)

0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50% 55%


0 cases

1 – 5 cases

6 – 10 cases

11 – 25 cases

26 – 50 cases

51 – 99 cases

100+ cases

Prior to 5 Years Ago Last 5 Years


The same respondents were asked to estimate what percentage of their

arbitrator caseloads these international cases represented. The resulting data are

present side-by-side for the purpose of comparison in Chart T.

Chart T. International Disputes as Percentage of Arbitrator Caseload

Q: About what percentage of your total arbitration caseload

in the last 5 years/[prior to 5 years ago] do these cases represent?

The data in Chart T indicate that generally speaking, the group’s international

arbitrator caseload for the prior five years was greater than before.

Finally, respondents were asked to estimate what percentage of their caseloads

will be represented by international disputes in the coming decade.69 Chart U

plots the summarized responses to this question side-by-side with estimates of

international caseloads for the last five years and the prior period.

69 The question asked, “If you had to guess, during the coming decade what

percentage of your total arbitration caseload will be comprised of cases involving

international disputes?”

3.7% (4)

3.7% (4)

43.9% (47)

2.8% (3)

15.9% (17)

15.9% (17)

10.3% (11)

3.7% (4)

10.3% (11)

9.4% (10)

43.0% (46)

13.1% (14)

15.0% (16)

2.8% (3)

6.5% (7)

0.0% (0)

0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50%

Don’t Know, Other,

N/A

0%

1% – 10%

11% – 25%

26% – 50%

51% – 75%

76% - 99%

100%

Percentage of Respondents

Per

cen

tag

e o

f C

ase

loa

d

Prior to 5 Years Ago Last 5 Years


Chart U. International Disputes as Percentage of Arbitrator Caseload:

Comparison of Estimated International Arbitrator Caseload for Coming

Decade vs. Caseloads for Last 5 Years and for Previous Period

The data in Chart U reflect generally higher expectations among this group of

experienced arbitrators for participation in international arbitration in the coming

decade, with international cases becoming an even greater portion of arbitrators’

caseloads.

5.6% (6)

4.7% (5)

26.2% (28)

20.6% (22)

20.6% (22)

14.0% (15)

4.7% (5)

3.7% (5)

3.7% (4)

3.7% (4)

43.9% (47)

2.8% (3)

15.9% (17)

15.9% (17)

10.3% (11)

3.7% (4)

10.3% (11)

9.4% (10)

43.0% (46)

13.1% (14)

15.0% (16)

2.8% (3)

6.5% (7)

0.0% (0)

0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50%


0%

1% – 10%

11% – 25%

26% – 50%

51% – 75%

76% - 99%

100%


Per

cen

tag

e o

f C

ase

loa

d

Prior to 5 Years Ago Last 5 Years Coming Decade


B. Areas of Arbitrator Practice

Survey subjects were asked to provide information regarding the types of

international disputes they arbitrated; the responses of 127 respondents are

reflected in Chart V.70 Respondents were allowed to select as many categories as

they thought accurately represented their experience.

Chart V. Areas of Arbitrator Practice

Q: For what types of international disputes have you

served as an arbitrator? Please select all that apply.

70 Through inadvertence, the final version of the Survey included no parallel question

focusing on the kinds of domestic disputes the subjects arbitrated. However, it is likely

that for most kinds of disputes, respondents’ domestic and international caseloads will

include similar kinds of cases. Possible exceptions include consumer and employment

disputes, which may not be as likely to be arbitrated in the international arena due to

public policy limitations in other countries’ arbitration laws. See Thomas J. Stipanowich,

The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future

of American Arbitration, 22 AM. REV. INT’L ARB. 323, 407-21 (2011). Indeed, the fact

that so many respondents identified employment or consumer cases among the kinds of

“international” disputes they arbitrated makes one wonder if they misread the question to

refer to their arbitral practice generally.

22.0% (28)

5.5% (7)

8.7% (11)

15.0% (19)

18.9% (24)

19.7% (25)

19.7% (25)

26.8% (34)

30.7% (39)

32.3% (41)

32.3% (41)

35.4% (45)

37.0% (47)

40.2% (51)

45.7% (58)

46.5% (59)82.7% (105)

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%

Other

Labor Relations

Malpractice

Medical

Health Care

Consumer

Entertainment

Insurance/Reinsurance

Securities/Brokerage

Franchise

Real Estate

Employment

Energy/Utilities

Technology

Construction

Intellectual Property

Contracts


Given the fact that binding arbitration is normally founded on agreement by the

parties, and, furthermore, is most often entered into under the terms of pre-dispute

arbitration provisions in other contracts,71 it was to be expected that the great

majority of respondents would report arbitrating “contract” disputes. Beyond this

general category, Chart V reflects a wide spectrum of arbitration experience.

Respondents who reported arbitrating “Other” kinds of disputes most frequently

reported arbitrating disputes pertaining to: foreign investment (five), bankruptcy

(four), transportation and shipping (four), telecom (two), antitrust actions (two),

expropriation (two), and sales, licensing, and distribution agreements (two).

C. Experience as Sole Arbitrator

Survey respondents were asked to report their experience acting as a sole

arbitrator (as opposed to serving as a member of a multi-member arbitration

tribunal) with respect to cases involving different amounts in controversy. As

reflected in Chart W, the great majority of respondents reported such experience.

Chart W. Experience as Sole Arbitrator

Q: Have you ever served as a sole arbitrator in a case involving disputes . . .

Because sole arbitrators appear to be used most frequently when the stakes are

low,72 it was to be expected that many respondents would report experience as

71 See REDFERN & HUNTER, supra note 1, at 85. 72 See, e.g., AMERICAN ARBITRATION ASSOCIATION [AAA], COMMERCIAL

ARBITRATION RULES AND MEDIATION PROCEDURES (rules amended and effective Oct. 1,

2013) (Expedited Rules, E-4. “Appointment and Qualifications of Arbitrator: (a) The

AAA shall simultaneously submit to each party an identical list of five proposed

arbitrators drawn from its National Roster from which one arbitrator shall be appointed;

R. 16 “Number of Arbitrators. (a) If the arbitration agreement does not specify the number

of arbitrators, the dispute shall be heard and determined by one arbitrator, unless the AAA,


sole arbitrators in disputes involving relatively small amounts in controversy.

This was certainly true: a large majority of respondents reported such experience.

More surprising, however, was the large percentage of respondents who had

served as individual arbitrators in “big” cases: almost a third (32.1%) claimed

such experience with disputes involving $50 million or more. This reality should

be of great relevance in the debate over the use of single arbitrators versus multi-

member tribunals.73

D. Tripartite Arbitration

A common method of selecting an arbitration tribunal is the “tripartite”

approach in which each of the parties unilaterally appoints one of the arbitrators

and the third arbitrator is appointed jointly by both parties or in some other agreed

fashion.74 Tripartite tribunals are used extensively in domestic arbitration

proceedings and are virtually ubiquitous in the international realm.75 However,

scholars and practitioners continue to debate the impact of direct appointment on

the independence and impartiality of “wing” arbitrators.76 As indicated in Chart

X, more than 90% (90.8%) of responding Survey takers indicated experience as an

arbitrator on a tripartite tribunal.

in its discretion, directs that three arbitrators be appointed . . . [;] b) Any request for a

change in the number of arbitrators as a result of an increase or decrease in the amount of a

claim or a new or different claim must be made to the AAA . . . .”). Cf. INTERNATIONAL

CHAMBER OF COMMERCE [ICC], RULES OF ARBITRATION, Art. 12 (effective Jan. 1, 2012)

(“Where the parties have not agreed upon the number of arbitrators, the Court shall

appoint a sole arbitrator, save where it appears to the Court that the dispute is such as to

warrant the appointment of three arbitrators”); LONDON COURT OF INTERNATIONAL

ARBITRATION [LCIA], ARBITRATION RULES, Art. 5.9 (effective Oct. 1, 2014) (permitting

the LCIA Court to appoint sole arbitrator in a default setting unless “the nature and

circumstances of the dispute, its monetary amount or value, the location and languages of

the parties, the number of parties and all other factors which it may consider relevant in

the circumstances” require a three-member tribunal). 73 MARGARET L. MOSES, THE PRINCIPLES AND PRACTICE OF INTERNATIONAL

COMMERCIAL ARBITRATION 123 (2d ed. 2012). 74 See Stephen C. Rogers, Can Tripartite Arbitration Panels Reach Fair Results?, 8(1)

DISP. RESOL. MAG. 27, 27 (2001). 75 Catherine A. Rogers, Regulating International Arbitrators: A Functional Approach

to Developing Standards of Conduct, 41 STAN. J. INT’L L. 53, 106 (2005). 76 See Stipanowich, Reflections, supra note 1, at 336, 368-73; Jan Paulsson, Moral

Hazard in International Dispute Resolution; Presented to the Institute for Transnational

Arbitration – Dallas; June 2010, 7(1) WORLD ARB. & MEDIATION REV. 205 (2013);

Andreas F. Lowenfeld, The Party-Appointed Arbitrator in International Controversies:

Some Reflections, 30 TEX. INT’L L.J. 59 (1995); Dominique Hascher, Independence and

Impartiality of Arbitrators: 3 Issues, 27 AM. U. INT’L REV. 789 (2012). See also Seth H.

Lieberman, Note, Something’s Rotten in the State of Party-appointed Arbitration:

Healing ADR’s Black Eye that Is “Nonneutral Neutrals,” 5 CARDOZO ONLINE J. CONF.

RES. 10 (2004).


Chart X. Experience Serving on Tripartite Panels

Q: Have you served as an arbitrator on a “tripartite” arbitration tribunal,

in which each of the parties unilaterally appointed one of the arbitrators

and the third arbitrator was appointed jointly by both parties?

Those individuals with pertinent experience were asked to share their

perceptions regarding tripartite panels, as reflected in Table 1.

Table 1. Perceptions Regarding Tripartite Panels

Q: Based on your experience with tripartite panels, please indicate

how often each of the following occurs:

Always Usually About half

the time Sometimes Never

Tripartite tribunals work very

well.

10.3%

(12)

66.7%

(78)

6.8%

(8)

16.2%

(19)

0.0%

(0)

Arbitrators appointed by

individual parties are

unqualified due to lack of

experience as arbitrators.

0.0%

(0)

2.6%

(3)

1.7%

(2)

55.6%

(65)

40.2%

(47)


individual parties are

predisposed toward the party

that appointed them even

when the applicable

procedures require them to

be independent and

impartial.

0.0%

(0)

16.2%

(19)

11.1%

(13)

61.5%

(72)

11.1%

(13)

90.8%

(119)

9.1%

(12)

Yes

No



individual parties are just as

qualified as arbitrators

appointed jointly.

6.8%

(8)

66.7%

(78)

10.3%

(12)

16.2%

(19)

0.0%

(0)

Tripartite tribunals work

together as cooperatively as

tribunals in which all

arbitrators are jointly

selected.

8.5%

(10)

70.1%

(82)

4.3%

(5)

16.2%

(19)

0.9%

(1)


individual parties act

independently and impartially.

9.4%

(11)

53.9%

(63)

9.4%

(11)

25.6%

(30)

1.7%

(2)


individual parties decide close

questions in favor of the party

that appointed them even

when the applicable

procedures require them to be

independent and impartial.

0.9%

(1)

14.5%

(17)

12.0%

(14)

59.8%

(70)

12.8%

(15)

More than three-quarters (77.0%) indicated that usually (if not always),

“[t]ripartite panels [usually] work very well”; almost as many (73.5%) reported

that usually (if not always), arbitrators appointed directly by parties were as

qualified as other arbitrators; and 78.6% indicated that tripartite panelists worked

together as cooperatively as arbitrators who were jointly selected.

However, group responses to some other queries tend to reinforce some of the

concerns that have been expressed regarding wing arbitrators appointed

unilaterally by individual parties on tripartite panels.77 More than half the

respondents (59.9%) perceive that at least sometimes, party-appointees are

“unqualified due to lack of experience as arbitrators.” Moreover, almost nine-

tenths (88.8%) believe that at least sometimes, party-appointees “are predisposed

toward the party that appointed them even when the applicable procedures require

them to be independent and impartial.” A similar number (87.2%) perceive that

party-appointees at least sometimes decide close questions in favor of the party

that appointed them even when the applicable procedures require them to be

independent and impartial.78 These data offer ample bases for a thoroughgoing re-

examination of the dynamics of tripartite panels and party-appointed arbitrators.79

77 See generally Paulsson, supra note 76. 78 See COMMERCIAL ARBITRATION AT ITS BEST: SUCCESSFUL STRATEGIES FOR

BUSINESS USERS 298-300 (Thomas J. Stipanowich & Peter H. Kaskell eds., 2001)

[hereinafter COMMERCIAL ARBITRATION AT ITS BEST] (discussing then-existing appellate

programs, pros and cons). 79 See Stipanowich, Reflections, supra note 1, at 335-36, 368-73. See also RASHDA

RANA & MICHELLE SANSON, INTERNATIONAL COMMERCIAL ARBITRATION 160-61 (2011).


E. Appellate Arbitration

Long utilized in some arbitration programs,80 optional appellate arbitration

procedures were put forward by leading institutions such as the CPR Institute for

Dispute Resolution81 and JAMS82 some years ago as an alternative for arbitrating

parties who desired the opportunity for a “second look” at arbitrators’ decisions on

the merits.83

As indicated in Chart Y, only a small percentage (10.7%) of Survey

respondents indicated experience with appellate arbitration. This is presumably

because appellate arbitration is not often employed and, moreover, because

applicable procedures may establish special qualifications for appellate arbitrators,

such as prior service on the bench.84

Chart Y. Experience as Appellate Arbitrator

Q: Have you served as an arbitrator under appellate arbitration rules

(such as, for example, those published by JAMS or CPR)?

80 See COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 298-304. See also

Mauro Rubino Sammartano, The Fall of a Taboo: Review of the Merits of an Award by an

Appellate Arbitration Panel and a Proposal for an International Appellate Court, 20 J.

INT’L ARB. 387, 390 (2003). 81 INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION [CPR],

APPELLATE ARBITRATION RULES (revised 2007), available at http://www.cpradr.org/

RulesCaseServices/CPRRules/AppellateArbitrationProcedure.aspx. 82 JAMS, OPTIONAL ARBITRATION APPEAL PROCEDURE (effective June 2003),

available at http://www.jamsadr. com/appeal. 83 The American Arbitration Association recently published its own appellate

arbitration procedures. AAA OPTIONAL APPELLATE ARBITRATION RULES (effective

Nov. 1, 2013), available at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/

ADRSTAGE2016218. 84 For example, CPR organized an appeal panel consisting exclusively of former

federal judges who were also experienced arbitrators. See COMMERCIAL ARBITRATION AT

ITS BEST, supra note 78, at 301, n.134.

10.7% (14)

89.3%

(117)

Yes

No


F. Ad Hoc Arbitration and Non-Administered Arbitration Rules

Ad hoc arbitration proceedings are those which are conducted pursuant to

rules agreed to by the parties or the arbitration tribunal, but where there is no

administering institution. In some cases, rather than relying on rules of their own

making, parties agree to use procedures specially developed for non-administered

arbitration, such as the UNCITRAL Arbitration Rules85 or the CPR Non-

administered Arbitration Rules.86 Both of these approaches were the subject of

Survey questions that sought information regarding subjects’ experiences and

perceptions.

As shown in Chart Z, roughly three-quarters (73.3%) of respondents indicated

experience as an arbitrator in ad hoc proceedings “in which the parties were

responsible for determining and agreeing on their own arbitration procedures

rather than relying on the procedures of an arbitral institution.”

Chart Z. Experience as Arbitrator in “Ad Hoc” Arbitration

Q: Have you served as an arbitrator in an “ad hoc” arbitration, in which the

parties were responsible for determining and agreeing on their own arbitration

procedures rather than relying on the procedures of an arbitral institution?

Those who had served as an arbitrator in ad hoc arbitrations were asked to

compare the “overall cost” and “time to complete proceedings” of ad hoc

arbitrations versus those conducted under the procedures of an arbitral institution.

85 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, UNCITRAL

ARBITRATION RULES (as revised in 2010). 86 INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION, NON-

ADMINISTERED ARBITRATION RULES (effective Nov. 1, 2007).

73.3%

(96)

26.7%

(35)

Yes

No


As indicated in Chart AA, the responses were mixed. Almost half (45.8%)

viewed ad hoc proceedings as entailing similar costs while almost as many

(41.7%) perceived ad hoc arbitration as less costly. About 60% (59.4%) thought

ad hoc proceedings entailed similar dispute resolution cycle time while about a

quarter (24.0%) believed ad hoc proceedings took less time.

Chart AA. Ad Hoc Arbitrations vs. Usage of Institutional Procedures

Q: For those instances where you have served as an arbitrator in an “ad-hoc”

arbitration, how did those arbitrations compare to arbitrations conducted under

the procedures of an arbitral institution, in terms of overall cost and time to

complete proceedings?

These same respondents were asked, “What do you think caused the

differences in cost and length of proceedings, if any, between ad hoc arbitrations

and arbitrations conducted under the procedures of an arbitral institution?” and

were given the opportunity to provide open-ended responses.87 The most

87 Where a response was sufficiently clear and unambiguous it was grouped into one

or more appropriate categories.

0.0%

(0)

9.4%

(9)

45.8%

(44)

34.4%

(33)

7.3%

(7)3.1%

(3)1.0%

(1)

13.5%

(13)

59.4%

(57)

19.8%

(19)

4.2%

(4) 2.1%

(2)

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

55%

60%

65%

Much greater Greater About the same Less Much less Don't know

Overall cost Time to complete proceedings


prevalent responses indicated no perceived difference between the cost or length

of ad hoc arbitrations versus those conducted under the procedures of an arbitral

institution (24 individuals, or 25.0% of all responses); that ad hoc arbitrations

were less costly due to their having less or no administrative fees (12 responses, or

12.5%);88 and that ad hoc processes improved communications between parties

and arbitrators, and between the parties themselves (6 individuals, or 6.3%).89

One respondent also commented that “[o]ften the ad hoc rules are less complete

than rules of an arbitral institution. The incompleteness of such rules contributes

to uncertainty, and more numerous disputes on procedure,” and two other

individuals expressed similar concerns about parties or arbitrators attempting to

conduct ad hoc arbitrations without sufficient experience to sift through the

procedural disputes that may arise when doing so. The sole individual who

perceived that ad hoc arbitrations take “much greater” time to complete than those

conducted under the procedures of an arbitral institution wrote that “without an

arbitral body and without any rules, the parties are at sea and the proceedings drag

out.”

Concerns such as those above sometimes spur parties who do not wish to have

arbitration administered by an organization to incorporate published procedures

for non-administered arbitration in their agreement.90 As depicted in Chart BB,

more than four-fifths (80.9%) of respondents had arbitrated under non-

administered rules “(such as, for example, those of CPR or UNCITRAL).”

88 In addition to subjects’ comments concerning reduced and eliminated

administrative fees, one participant suggested that ad hoc procedures cut process costs

because of party “buy-in” to negotiated cost structures. (“The parties have bargained for

cost-cutting procedures and so they are easier to enforce when problems arise”). 89 One respondent wrote that “communications between the arbitrator(s) do not have

to be funneled through an administrator and there is no waiting for an administrator to

convene a preliminary hearing or any other discussion that is not evidentiary[!]” On the

other hand, one participant wrote that ad hoc proceedings may take longer because “as an

arbitrator [I] am unable to point to specific rules to limit discovery, motions or other

process delay.” Another respondent discussed how, in their experience, ad hoc

proceedings were typically used for relatively lower-damages claims which may have

accounted for their relatively swift completion. (“The ad hoc matters were generally less

complex and involved smaller damages claims. So, the parties were more motivated to

proceed efficiently and expeditiously”).

Three respondents discussed how ad hoc arbitrations allow parties and arbitrators to

tailor proceedings more efficiently than when they are bound by arbitral institutions’ rules.

One respondent explained:

The parties can tailor the proceedings to the dispute. They are not

bound by the administrative rules of an organization. Generally, the

parties can agree upon the procedures that are to be employed, but

where they can’t agree, the arbitrator can weigh the positions of the

parties and decide, which is often better than being bound by pre-

existing rules. 90 REDFERN & HUNTER, supra note 1, at 53.


Chart BB. Experience as Arbitrator under Non-Administered Rules

Q: Have you served as an arbitrator under “non-administered”

arbitration rules (such as, for example, those of CPR or UNCITRAL)?

The 106 respondents who indicated they had served as an arbitrator under

non-administered rules were then asked to compare the “overall cost” and “time to

complete proceedings” of administered versus non-administered arbitrations, as

shown in Chart CC.

80.9%

(106)

19.1%

(25)

Yes

No


Chart CC. Cost and Time of Administered vs.

Non-Administered Arbitrations

Q: For those instances where you have served as an arbitrator under

“non-administered” arbitration rules, how did those arbitrations compare to

administered arbitrations in terms of overall cost and time to complete

proceedings?

Chart CC reveals a pattern of responses quite similar to that of Chart AA,

above, showing responses when respondents were asked about the relative cost

and cycle time of ad hoc proceedings. Interestingly, however, a higher percentage

of respondents view the expense and cycle time of arbitration under published

“non-administered” rules as “about the same” as administered arbitration.

When asked, “What do you think caused the differences in cost and length of

proceedings, if any, between non-administered and administered arbitrations?”91

33 individuals, or 33.1% of those responding, indicated the cost and the duration

of administered and non-administered arbitrations were the same or about the

same. Smaller numbers stated that non-administered arbitration proceedings took

less time due to lack of administrative delays, including “case managers,”

91 Where a response was sufficiently clear and unambiguous it was grouped into one

or more appropriate categories.

0.0%

(0)

5.7%

(6)

57.5%

(61)

27.4%

(29)

4.7%

(5)

4.7%

(5)0.0%

(0)

7.5%

(8)

67.0%

(71)

19.8%

(21)

4.7%

(5) 0.9%

(1)0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

55%

60%

65%

70%

75%

Much greater Greater About the same Less Much less Don't know

Overall cost Time to complete proceedings


“administrators,” and “middle m[e]n”92 (18 individuals, or 17.0%); that non-

administered proceedings cost less due to the lack of administration fees

(16 individuals, or 15.1%);93 and that not using an administrative body reduces

process length by improving communications between parties and arbitrators, and

between the parties themselves (eight individuals, or 7.5%).94

Respondents’ contrasting opinions reflect disagreement regarding the nature

and value of administrative bodies’ roles in arbitration processes. One participant

stated, “I don’t think administration adds much value unless there is a problem,”

while others perceived a need for administrative institutions, especially when it

came to the handling of arbitrator compensation.

G. Streamlined or “Fast Track” Arbitration

Recent concerns regarding the perceived mounting expense and length of

commercial arbitration have prompted a good deal of discussion about the utility

92 Responses indicating perceptions that non-administered arbitrations were

completed more quickly than administered proceedings included the statements, “I can

convene more quickly than any service provider” and time is saved through “[a]ggressive

scheduling by arbitrator[s].” As one commenter sarcastically put it, “[C]ommitted

arbitrators can move things along without adult supervision.” 93 Responses indicating perceptions that non-administered arbitrations were

completed less expensively than administered proceedings included the statements, “I

believe admin[ist]ering inst[itu]tions . . . charge excessive fees,” “[a]dministered

arbitrations have a high layer of administrative cost not typically justified by the services

delivered by an administering body,” and “[t]he . . . difference in increased cost is for

those ADR providers who charge significant upfront fees for administration that do not

include fees of the panel or have any real connection to the actual cost of administering the

case.” In contrast, one respondent wrote, “Someone still has to administer the case and in

non-administered case[s] it is an arbitrator at a higher hourly rate.” While indicating their

opinion that administrative fees add to arbitration cost, one respondent echoed others’

sentiments of nevertheless wanting to avoid conflict regarding their compensation. (“Fees

of the provider organization increased the cost to the parties of administered arbitration; I

prefer administered arbitration so that I do not need to involve myself in collecting

deposits and arbitrator fees.”). 94 One respondent commented, “I believe speed arises in these cases since the parties

are working together better,” “[proceedings are faster due to] improved communication

between parties,” speed is increased through “[d]irect communication with

repres[en]tatives of the parties,” and arbitrators have “[m]ore involvement in logistical

determinations, coaching the parties.” Another participant wrote that non-administered

arbitrations “[s]eemed to be more efficient. All matters came directly to me as the

arbitrator instead first to the case manager and then to me. I have found that some case

managers do not handle matters immediately. I am sure that it is because they have a large

docket.” In contrast to these statements, one respondent commented that “[w]ithout an

administrative body there are inevitable problems in dealing with the parties, particularly

the conflicts around payment of arbitrator comp[ensation],” while another respondent

warned that “I think this [non-administered arbitration] only works for experienced

arbitrators . . . .”


of “streamlined,” “expedited,” or “fast-track” arbitration procedures.95 As shown

in Chart DD, approximately three-quarters of respondents (76.3%) indicated

having arbitrated using such procedures.

Chart DD. Experience as Arbitrator in Streamlined /

“Fast Track” Arbitration

Q: Have you served as an arbitrator in a case under “streamlined”

or “fast track” arbitration procedures?

Those respondents who claimed experience with streamlined or fast-track

procedures were then asked to indicate the ranges of amounts in dispute for which

they had conducted such procedures. Chart EE reflects the total percentage of the

respondent pool that indicated having arbitrated cases within various ranges of

amounts in dispute.

95 See PROTOCOLS FOR EXPEDITIOUS, COST-EFFECTIVE COMMERCIAL ARBITRATION:

KEY ACTION STEPS FOR BUSINESS USERS, COUNSEL, ARBITRATORS & ARBITRATION

PROVIDER INSTITUTIONS 43 (Thomas J. Stipanowich et al. eds., 2010) [hereinafter CCA

PROTOCOLS]. See Stipanowich, Reflections, supra note 1, at 346-47.

76.3%

(100)

23.7%

(31)

Yes

No


Chart EE. Experience as Arbitrator in Streamlined /

“Fast Track” Arbitration

Q: Have you served as an arbitrator in a case under “streamlined”

or “fast track” procedures involving disputes . . .

Because widely used commercial arbitration fast-track rules are aimed at

cases of relatively low value,96 it is not surprising that the greatest body of

experience among respondents was in cases involving less than $100,000 and,

secondarily, to cases involving between $100,000 and $499,000. However, a

sizable minority of respondents have experience with streamlined procedures in

large cases, including some in excess of $50 million. This latter body of

experience should be carefully examined in order to assess possible opportunities

for more expansive use of fast track or streamlined procedures.97

H. “Baseball” or Final Offer Arbitration

In “final offer” arbitration, the arbitrator’s award must be equal to one or the

other of the final offers submitted by the parties.98 Among the variants of this

procedure is the approach utilized to resolve salary disputes in Major League

Baseball.99 Besides potentially offering a “quick, informal, final and binding

96 See, e.g., AAA, COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES,

Expedited Rule E-2 (“If an increased claim or counterclaim exceeds $75,000, the case will

be administered under the regular procedures unless all parties and the arbitrator agree that

the case may continue to be processed under the Expedited Procedures”). 97 See Stipanowich, Reflections, supra note 1, at 346-47. 98 Benjamin A. Tulis, Final Offer “Baseball” Arbitration: Contexts, Mechanics and

Applications, 20 SETON HALL J. OF SPORTS & ENTER. L. 86 (2010). 99 RESOLVING DISPUTES, supra note 17, at 598.


resolution,”100 and hedging risks for both parties,101 final offer arbitration may also

stimulate informal settlements by encouraging parties to make more perceptibly

reasonable offers.102 As reflected in Chart FF, not quite a third of Survey

respondents claimed experience with some form of final offer arbitration.

Chart FF. Experience with “Baseball” / “Final Offer” Procedures

Q: Have you served as an arbitrator in a case under “baseball” or

“final offer” procedures, where you were called upon to render an award

of an amount equal to one or the other parties’ final offers?

I. “Bracketed” Awards

Another method of curbing risks in arbitration is a “bracketed” award. This

approach involves the setting of pre-determined upper and lower limits for an

award of damages.103 If the arbitrator renders an award between the limits, it is

enforceable in the amount rendered. An award above the agreed range is

enforceable at the upper limit set by agreement; an award below the agreed range

is enforceable at the lower limit. As shown in Chart GG, only a small minority of

respondents (13.7%) claim experience as arbitrators with bracketed awards.104

100 Tulis, supra note 98, at 92. 101 Michael Carrell & Richard Bales, Considering Final Offer Arbitration to Resolve

Public Sector Impasses in Times of Concession Bargaining, 28 OHIO ST. J. ON DISP.

RESOL. 1, 31 (2013). 102 Id. 103 RESOLVING DISPUTES, supra note 17, at 599. 104 It should be noted, however, that it is possible for parties to agree to upper and

lower limits for enforcement of an arbitral award even if the arbitrator is unaware of the

arrangement. Indeed, they may prefer to keep the arbitrator in the dark so as not to

influence the latter’s award. See id. and accompanying Teacher’s Manual 161 (2d ed.

2010).

32.1%

(42)

67.9%

(89)

Yes

No


Chart GG. Experience Rendering Awards within Pre-Determined Ranges

Q: Have you served as an arbitrator in a case in which you were required

to render an award within a certain dollar range (such as, for

example, $500,000 to $1 million)?

J. Emergency Arbitration

Growing attention has been given to emergency measures of protection

for the preservation of assets, the conservation of goods, the sale of perishable

goods, and the like.105 Leading international and U.S. domestic arbitration

procedures now include such mechanisms in their commercial procedures.106 As

indicated in Chart HH, more than a third of Survey respondents claim experience

“as an arbitrator under procedures for interim/emergency measures of protection.”

The experience of such arbitrators may be of guidance in the continuing

development of interim and emergency procedures.

105 See generally Mark Kantor, Comparing Expedited Emergency Relief under the

AAA/ICDR, ICC and LCIA Arbitration Rules, 24 ALTERNATIVES TO HIGH COST LITIG. 136

(2006). See also Martin Davies, Court-Ordered Interim Measures in Aid of International

Commercial Arbitration, 17 AM. REV. INT’L ARB. 299, 299 (2006). 106 See, e.g., AAA COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES,

R. 38 “Emergency Measures of Protection”; ICDR INTERNATIONAL RULES, Art. 24

(effective June 1, 2014); ICC ARBITRATION RULES 2012, Appendix V. Emergency

Arbitrator Rules (effective Jan. 1, 2012); HKIAC ADMINISTERED ARBITRATION RULES 2013,

Schedule 4 Emergency Arbitrator Procedures (effective Nov. 1, 2013); JAMS,

INTERNATIONAL ARBITRATION RULES 2011, Art. 26 “Interim Measures of Protection”

(effective Aug. 1, 2011). See also Gary B. Born & Sabrina Lee, The Emergency Arbitrator

Procedures Under the New HKIAC Rules, ASIAN DISP. REV. 116 (Oct. 2013) (comparing

HKIAC Emergency Arbitrator Procedures to some other emergency procedures).

13.7%

(18)

86.3%

(113)

Yes

No


Chart HH. Experience with Interim/Emergency Protective Measures

Q: Have you served as an arbitrator under procedures for interim / emergency

measures of protection (such as, for example, the AAA Optional Rules for

Emergency Measures of Protection or similar procedures for the preservation of

assets, the conservation of goods, the sale of perishable goods, etc.)?

K. Multi-Disciplinary Panels

An important, often overlooked aspect of arbitration practice is the value of

tribunals comprised of arbitrators who come from varying professional and

experiential backgrounds, including non-legal backgrounds. The antecedents of

modern arbitration practice include merchant and professional guilds that resolved

disputes utilizing the expertise of their members.107 As Soia Mentschikoff, who

studied commercial arbitration in the mid-twentieth century, noted, merchant

arbitrators were more likely to be informed regarding commercial “fact-finding

norms” than a judge or jury.108

Today, however, as arbitration is increasingly approached as an arena of

professional practice, lawyers appear to be dominating the arbitrator ranks109 – a

reality starkly illustrated by the backgrounds of Survey respondents (Chart C

above). Anecdotal experience indicates that currently many arbitration tribunals

are comprised solely of individuals of legal background.

The Survey sought information regarding subjects’ experiences with, and

perspectives on, arbitrators with non-legal backgrounds. As depicted in Chart II,

107 Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 U.

TORONTO L.J. 265, 267 (2003). 108 Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846, 868 (1961). 109 See supra Part II.C.

36.6%

(48)

63.4%

(83)

Yes

No


over four-fifths (84.5%) of respondents indicated that they had previously served

with non-lawyer arbitrators on at least one arbitration panel.

Chart II. Experience as Arbitrator with Non-Lawyer Panelists

Q: Have you ever served on an arbitration tribunal

that included an arbitrator who was a non-lawyer?

The respondents who had co-arbitrated with non-lawyer arbitrators110 were

asked what percentage of previous arbitration tribunals on which they had served

included non-lawyers, as shown in Chart JJ below.

110 Of the 109 respondents asked this and all subsequent questions pertaining to

experiences with non-lawyer arbitrators and the practice of non-lawyer arbitrators, 108

individuals answered each question and one individual answered none of the questions.

Thus, data for this and each of the remaining questions in this section on multi-disciplinary

panels reflect response pools of 108 subjects.

84.5%

(109)

15.5%

(20)

Yes

No


Chart JJ. Percentage of Tribunals with Non-Lawyer Arbitrators

Q: Approximately what percentage of the arbitration tribunals on

which you have served have included an arbitrator who is a non-lawyer?

The foregoing data suggest that respondents collectively have relatively little

experience with multidisciplinary tribunals, and that in recent years the relative

usage of tribunals involving non-lawyer arbitrators is diminishing.111

The same respondents were asked to identify the types of disputes they had

co-arbitrated with non-lawyer arbitrators, as shown in Chart KK. The list is

dominated by construction and securities/brokerage disputes, both well-known

arenas for multi-disciplinary panels.112

111 The concerns associated with the reduced usage of multi-disciplinary tribunals are

discussed in Stipanowich, Reflections, supra note 1, at 366-68. 112 Those respondents who selected “Other” were asked, “What types of disputes do

you consider to be in the ‘Other’ category?” Eighteen individuals answered the question,

and within that small sample the most common responses referenced cases involving

corporate valuation (three individuals, or 16.7% of the respondent pool); other accounting

28.7% (31)

53.7% (58)

8.3% (9)

2.8% (3)

3.7% (4)

0.9% (1)

1.9% (2)

8.3% (9)

66.7% (72)

8.3% (9)

9.3% (10)

4.6% (5)

0.9% (1)

1.9% (2)

0% 10% 20% 30% 40% 50% 60% 70%

0%

1% to 10%

11% to 20%

21% to 30%

31% to 40%

41% to 50%

More than 50%

Percentage of Tribunals

Per

cen

tag

e o

f C

ase

s

Prior to 5 Years Ago Previous 5 Years


Chart KK. Types of Disputes with Non-Lawyers

Q: In what types of disputes have you served on an arbitration tribunal

that included an arbitrator who was a non-lawyer? Please select all that apply.

All respondents who had previously arbitrated with non-lawyer arbitrators

were also given the opportunity to respond to the open-ended prompt, “What were

the professional backgrounds of the non-lawyers with whom you have served, and

how did their backgrounds vary dependent upon the type of dispute, if at all?”

The results are portrayed in Chart LL.

issues (three individuals, or 16.7%); disputes over attorney fees (two individuals, or

11.1%); transportation and shipping disputes (two individuals, or 11.1%); and one case

(5.6%) each involving personal injury, investment treaties, M&A, banking, and

professional sports.

16.7% (18)

1.9% (2)

2.8% (3)

2.8% (3)

2.8% (3)

4.6% (5)

5.6% (6)

5.6% (6)

5.6% (6)

7.4% (8)

7.4% (8)

9.3% (10)

9.3% (10)

10.2% (11)

25.9% (28)

29.6% (32)

60.2% (65)

0% 10% 20% 30% 40% 50% 60% 70%

Other

Medical

Health Care

Entertainment

Malpractice

Technology

Intellectual Property

Consumer

Labor Relations

Franchise

Energy/Utilities

Employment

Insurance/Reinsurance

Real Estate

Securities/Brokerage

Contracts

Construction


Chart LL. Professional Backgrounds of Non-Lawyers

Q: In what types of disputes have you served on an arbitration tribunal

that included an arbitrator who was a non-lawyer? Please select all that apply.

The presence of engineers, architects, construction contractors, and project

managers on the list attests to the tradition of multi-disciplinary panels for

construction disputes. However, accountants, brokers/securities specialists, and

business executives/managers are also conspicuous. 113

113 The 15 responses categorized in the “Other” category included backgrounds in

building (two individuals, or 1.9% of the total respondent pool), labor-relations/union

representatives (two individuals), (U.S.) federal code compliance – energy and trade

sectors (two individuals), maritime trade (one individual, or 0.9%), railroad (one

individual), port management (one), county judge - non-lawyer (one), law enforcement

(one), teaching (one), human resources (one), and economics (one).

15 (13.9%)

4 (3.7%)

4 (3.7%)

5 (4.6%)

5 (4.6%)

8 (7.4%)

17 (15.7%)

18 (16.7%)

20 (18.5%)

30 (27.8%)

32 (29.6%)

38 (35.2%)

0% 5% 10% 15% 20% 25% 30% 35% 40%

Other

Medical Doctors

Real Estate Developers

Construction Project Managers

Scientists/Technical Specialists

Insurance Appraisers/Adjusters

Executives/Business Managers

Brokers/Securities Specialists

Construction Contractors

Architects

Accountants

Engineers


Finally, the same respondents were queried regarding their perceptions of non-

lawyer arbitrators. As indicated in Table 2 below, nearly all respondents perceived

that, at least sometimes, “[n]on-lawyer arbitrators’ expertise is a necessary

complement to lawyer expertise” and that non-lawyer arbitrators may be “able to

probe some factual questions more effectively.” At the same time, however, more

than 40% (41.7%) of respondents believed arbitrators usually (if not always) “need

legal expertise in order to serve effectively,” and almost 60% (58.3%) believed non-

lawyer arbitrators never make effective chairs of arbitration panels.

Table 2. Perceptions Regarding Non-Lawyer Arbitrators

Q: Based on your experience serving with non-lawyer arbitrators,

please indicate how often each of the following occurs.



Non-lawyer arbitrators’ expertise is

a necessary complement to lawyer

expertise.

3.7%

(4)

18.5%

(20)

10.2%

(11)

63.0%

(68)

4.6%

(5)

Non-lawyer arbitrators are less

concerned than lawyer arbitrators

about rendering awards that comply

with applicable law.

2.8%

(3)

16.7%

(18)

8.3%

(9)

52.8%

(57)

19.4%

(21)

Non-lawyer arbitrators are able to

probe some factual questions more

effectively than lawyer arbitrators.

3.7%

(4)

14.8%

(16)

10.2%

(11)

63.9%

(69)

7.4%

(8)

Arbitrators need legal experience in

order to serve effectively.

5.6%

(6)

36.1%

(39)

9.3%

(10)

42.6%

(46)

6.5%

(7)

Non-lawyer arbitrators make

effective chairs of arbitration

tribunals.

0.0%

(0)

1.9%

(2)

2.8%

(3)

37.0%

(40)

58.3%

(63)

The foregoing data raise important questions regarding the makeup of

arbitration panels and the role of non-lawyer arbitrators. Ideally, such issues

should be brought to the attention of the business users and others whose interests

are affected by arbitration in various settings.

IV. PRE-HEARING MANAGEMENT

One of the most important developments in commercial arbitration in recent

decades is the increased emphasis on pre-hearing process, particularly information

exchange (or, in U.S. parlance, discovery) and motion practice.114 This enhanced

114 See generally Stipanowich, New Litigation, supra note 41, at 12; CCA

PROTOCOLS, supra note 95, at 5-8. See also Neal M. Eiseman et al., A Tale of Two

Lawyers: How Arbitrators and Advocates Can Avoid the Dangerous Convergence of

Arbitration and Litigation, 14 CARDOZO J. CONFLICT RESOL. 683, 701 (2013).


focus on the pre-hearing stage has presented new challenges for arbitrators as

process managers.115 In recognition of these developments, the CCA/Straus

Institute Survey placed considerable emphasis on subjects’ pre-hearing management

activities.

A. Tailoring Arbitration Procedures

As a creature of contract, arbitration is an engine of choice.116 The choice-

making opportunities afforded by arbitration hinge on many factors; aside from

the selection of arbitrators, no element of choice may be as important as the ability

of the parties, guided or facilitated by the arbitrator(s), to “flesh out” a procedural

framework for arbitration that is suited to the circumstances, including the

characteristics of the disputes and the requirements of the parties.117 It is therefore

not surprising that nearly all respondents answered affirmatively when asked if

they had “worked with parties to tailor arbitration procedures to better suit the

needs of the parties and the nature of the dispute,” as shown in Chart MM.

Chart MM. Experience Tailoring Arbitration Procedures

Q: As an arbitrator, have you worked with parties to tailor arbitration

procedures to better suit the needs of the parties and the nature of the dispute

(such as, for example, modifying discovery procedures, or adjusting deadlines)?

All 124 respondents who answered “Yes” were given the opportunity to write

a short answer offering examples of how they helped tailor proceedings as an

115 See CCA PROTOCOLS, supra note 95, at 69-72; Eiseman, supra note 114, at 701. 116 BORN, supra note 3, at 2; Stipanowich, Reflections, supra note 1, at 308, 314-21. 117 David Brown, What Steps Should Arbitrators Take to Limit the Cost of

Arbitration?, 31(4) J. INT’L ARB. 499 (2014).

96.1%

(124)

3.9%

(5)

Yes

No


arbitrator; 114 offered examples, all of which are summarized by category in

Chart NN.118

Chart NN. Experience Tailoring Arbitration Procedures

Q: If you can, please provide some specific examples of how

you have worked with parties to tailor arbitration procedures:

Leading arbitration procedures now place great emphasis on planning

conferences (variously referred to as “pre-hearing conferences,” “preliminary

hearings” and other variants), and respondents made a number of references to

conducting such conferences to create a tailored framework for the process.119

118 For the purposes of this analysis, a single response might fall under several

categories or headings of “tailoring” activity. As an example, if a respondent indicated

that he/she often holds pre-hearing conferences for the purpose of limiting issues to be

proven, to assess for him/herself how he/she is going to oversee the discovery process, and

to begin searching for ways by which parties might informally address disagreements, the

authors “counted” the response under four discrete headings. 119 Respondents variably referred to such meetings as “preliminary hearings,” “pre-

hearing conferences,” and other, similar phrases corresponding to the terminology used by

various arbitration provider organizations. In all cases the intent of the meeting was to

becoming familiar with the parties, the parties’ needs, and the particulars of the dispute,

and thereby to determine ways by which to expedite and otherwise tailor the arbitration

proceeding. One respondent noted that “[i]t does not always work, however, and litigation

counsel often wish to proceed with the kinds of litigation procedures with which they are

comfortable.”

11.4% (13)

13.2% (15)

13.2% (15)

14.9% (17)

14.9% (17)

35.1% (40)

41.2% (47)

66.7% (76)

0% 10% 20% 30% 40% 50% 60% 70%

Dispositive motions

Bifurcation

Motion practice,

generally

Resolution / narrowing

of issues

Pre-hearing

conferences

Procedural logistics

Evidentiary hearing

management

Discovery practice


More than a third of respondents (35.1%) made reference to modifying

procedural timetables, schedules, and other hearing logistics.120 More than two-

thirds (66.7%) reported working with parties to tailor and limit discovery

processes.121 Some (14.9%) indicated that they actively promoted informal

resolution or narrowing of issues to be addressed.122 Some (11.4%) used dispositive

motions to resolve issues that may have otherwise unnecessarily lengthened

proceedings,123 while some (13.2%) placed limits on motion practice.124

Another two-fifths of respondents (41.2%) said they helped tailor evidentiary

hearings and methods of introducing evidence,125 including various activities

associated with witness testimony (29.8%).126 Some (13.2%) reported having

120 Participants gave many examples of how they worked with parties to modify or

facilitate procedural timetables, including many such efforts that went far beyond simply

allowing for conflicting schedules and extending or compressing deadlines, such as

“[allowing for the usage of] closing statements in lieu of post-hearing briefs”; working

with parties “to streamline the hearings by stipulations”; and, in larger cases, holding

“regular status conferences . . . to keep things moving.” 121 For a more detailed summary see infra Part IV.C. 122 These include, for example, “[g]rant[ing] delays [to facilitate] . . . settlement

negotiations”; “[a]ddressing first certain issues of law (or limited fact development) that

have the potential to narrow or dispose of the case”; “[w]henever a disagreement arises,

[instructing] the parties immediately to schedule a conference call with the Panel so it can

be resolved without jeopardizing the hearing date(s),” including, in particular, “tight

supervision on the discovery process and promptly held informal hearings to resolve

discovery issues.” 123 See infra Part IV.B. 124 See id. 125 Respondents indicated they have done so by “[a]ccepting all exhibits into evidence

at the outset except for specific isolated documents that are objected to”; allowing for “site

visits and on-site hearings”; encouraging parties to “provid[e] exhibits in electronic form

(rather than hard copies in notebooks)”; and attempting to persuade parties to “adopt

arbitration style evidentiary rules to save time at the hearing.” 126 This includes, for example, limiting the “number of witnesses at evidentiary

hearing”; “[e]nsuring that each witness testifies only once, even if there are

counterclaims”; “moving the seat of the arbitration without waivers of governing

procedural law to accom[m]odate witness and party travel and availability [and doing the]

same with convening hearings elsewhere to receive testimony of non-party witnesses

under subpoena that could not be compelled in discovery”; and allowing declarations or

witness statements in lieu of direct testimony. Six respondents specifically mentioned

using “chess clock”-style time limits on the presentation of evidence to limit hearing

length. Another mentioned “tellin[g] counsel to move on after I understand the point they

are making ad na[u]s[ea]m” and by “having counsel point out to me the contract clauses

they are relying instead of torturing a witness through a contract.” Others spoke of

“facilitating subpoenas of important witnesses;” “being flexible with the order of

presentation of witnesses;” and hearing witnesses via “Skype,” “by video-conference or

even, where appropriate, by phone.”

Expert testimony was the focus of a number of comments. Respondents made

reference to, for example, “appointment of [a] neutral [expert] by the arbitrator to avoid


bifurcated proceedings for various purposes.127 A few respondents tailored

proceedings through case consolidation and the organization of class certification

and notification processes.128

Respondents’ accompanying written comments portrayed a variety of

approaches including directive as well as collaborative strategies. While

respondents were asked how they “worked with parties to tailor arbitration

procedures . . . ” 28 individuals (24.6% of respondents)129 wrote answers focused

at least partially, if not entirely, on what they “require” or expect of parties, and

their arbitral prerogative regarding the management of procedures: “I try to

eliminate the tendency for a motion practice.” “I limit or eliminate broad

discovery, and require exchange of information and documents.” “I set

consecutive hearing dates and stick with them.”

B. Dispositive Motions

In recent years growing emphasis has been placed on the handling of

dispositive motions in commercial arbitration.130 Respondents’ comments stress

dueling experts”; “having experts on a particular topic testify in each other’s presence”

and having “expert panels” (sometimes referred to as “hot tubbing”); and holding separate

“expert meetings” where key issues are discussed in the course of preparing their reports. 127 Survey participants indicated multiple ways by which they have bifurcated issues

under consideration, including “bifurcating hearings between merits and quantum”;

“bifurcate[ing] key issue[s] (e.g., trademark and ownership)”; and “bifurcat[ing]

proceedings to deal with potentially dispositive motions” and otherwise “to advance

resolution of key issues.” One respondent noted that they only “very occasionally”

bifurcate, and that when they do so they time that decision so they can obtain a “detailed

damages analysis early enough to allow reparation but late enough to allow development

of the case.” 128 One respondent commented that they worked with parties regarding the

“consolidation of cases by submission in absence of [a] provision in [the] arbitration

clause or applicable rules” and another indicated that, while not necessarily involving

parties in a collaborative process, they have previously “develop[ed] a claims matrix to

evaluate large number of claims” and thereby streamline the process. 129 One respondent commented, “I use the first preliminary hearing to seek a

collaborative discussion about tailoring the process to fit the dispute. It does not always

work, however, and litigation counsel often wish to proceed with the kinds of litigation

procedures with which they are comfortable.” 130 See CCA PROTOCOLS, supra note 95, at 8-9, 36-37; Adam Raviv, No More

Excuses—Toward a Workable System of Dispositive Motions in International Arbitration,

28 ARB. INT’L 487, 488 (2012).

It is critical to note, however, that the handling of dispositive motions may be viewed

through a very different lens if one is focused on their use in the context of, for example,

arbitration of disputes between an employee and a company. In such contexts, early

disposition may make less sense and actually do harm if at the time of a motion the

employee is hindered by lack of access to documents or other evidence respecting an

employment discrimination claim, or civil rights or antitrust claims. See Nancy Welsh, I

Could Have Been A Contender: Summary Jury Trial as a Means to Overcome Iqbal’s


two leading themes: the role dispositive motions may play in resolving issues that

might otherwise unnecessarily lengthen proceedings (11.4%),131 and concerns

about placing appropriate limits on motion practice (13.2%).132

As reflected in Table 3, responses to the CCA-Straus Institute Survey suggest

that most experienced arbitrators are making efforts to effectively manage motion

practice and not to decline the opportunity to come to grips with opportunities to

resolve all or part of the case in a summary fashion, early on. Many arbitrators also

appear to be taking steps to avoid abuse in the filing of motions by requiring moving

parties to show there will be a net savings in arbitration time, cost, or both.

Table 3. Handling of Dispositive Motions

Q: As an arbitrator, how often do you do the following

in handling motions for summary disposition?



I readily and promptly rule on

motions for summary disposition of

issues.

43.8%

(56)

28.9%

(37)

4.7%

(6)

18.8%

(24)

3.9%

(5)

I decline to rule on motions for

summary disposition of issues,

deferring such matters until a

hearing on the merits of the case.

0.8%

(1)

14.1%

(18)

2.3%

(3)

47.7%

(61)

35.2%

(45)

I require, before the filing of any

motion for summary disposition of

issues, a showing by the moving

party that the motion has a

reasonable likelihood of being

granted.

18.0%

(23)

26.6%

(34)

6.3%

(8)

16.4%

(21)

32.8%

(42)

I require, before the filing of any

motion for summary disposition of

issues, a showing by the moving

18.0%

(23)

18.0%

(23)

3.9%

(5)

21.1%

(27)

39.1%

(50)

Negative Effects upon Pre-Litigation Communication, Negotiation and Early, Consensual

Dispute Resolution, 114 PENN. ST. L. REV. 1149 (2010). Thanks to Professor Welsh for

encouraging the inclusion of this strong caveat! 131 For example, one subject noted that they “[a]gree[d] to hear summary judgment

motions that both parties agreed might hasten resolution of entire dispute.” Another

commented that they “[r]educ[ed] the amount of time for hearing[s] on [m]otions for

[s]ummary [j]udgment,” thereby shortening proceedings. 132 Many respondents commented that they have “limited” or “eliminated motion

practice,” for instance by requiring that “[n]o one can make a motion without first

obtaining permission of the Panel” and only “sometimes [allowing] motions regarding

discovery or admission of evidence.” It is important to also note that here, as with

respondents’ commentary regarding discovery management, some respondents may have

interpreted this question as effectively asking how they manage or limit arbitral motion

practice independent of any cooperative process with parties.


party that the result will be a net

savings in arbitration time and/or

costs.

I entertain motions for summary

disposition of issues only where

they present a realistic possibility of

shortening, streamlining or focusing

the arbitration.

28.9%

(37)

42.2%

(54)

4.7%

(6)

13.3%

(17)

10.9%

(14)

C. Management of Discovery

As in litigation, pre-hearing discovery is widely regarded as the chief

contributor to cost and time in U.S. arbitration.133 Considerable stress has been

placed on the need for parties and arbitrators to make more deliberate efforts to

manage discovery where efficiency and economy are important party priorities.134

Table 4 reflects a wide array of data respecting arbitrator approaches to

discovery. It reveals that a majority (54.7%) of the experienced arbitrators in the

Survey purported, either usually or always, not to concern themselves with

discovery unless one or both parties requested their involvement. On the other

hand, large majorities either usually or always “encourage parties to place limits

on the scope of discovery” (93.8%); “point out to parties the costs of using court-

like discovery in arbitration” (78.9%); and “discourage . . . discovery [based] on

the Federal Rules of Civil Procedure or similar procedures” (75.0%).

The great majority (90.7%) also either usually or always work with counsel to

limit or streamline discovery. In accompanying comments respondents reported

various ways by which they have worked with parties to encourage informal,

voluntary exchange of information or tailor discovery to specific needs. They

sometimes accomplished the latter by having the parties elaborate their claims or

defenses or otherwise narrow the issues.135

The comments suggested that, again, some arbitrators may be much more

directive than others when it comes to discovery limits. Some spoke in terms of

“[p]ersuading parties to vary from arbitration agreements which called for broad

discovery rights and strict rules of evidence to limit discovery substantially,” or

“discouraging interrogatories.” Others apparently applied stronger measures,

such as “requiring counsel to defend the number of depositions and requir[ing]

them to be curtailed.”

133 See CCA PROTOCOLS, supra note 95, at 6-8. See also Giacomo Rojas Elgueta,

Understanding Discovery in International Commercial Arbitration through Behavioral

Law and Economics: A Journey Inside the Minds of Parties and Arbitrators, 16 HARV.

NEGOTIATION L. REV. 165, 181 (2011); Stipanowich, Reflections, supra note 1, at 341-42. 134 Stipanowich, Reflections, supra note 1, at 341-42. 135 In the words of one respondent, “When parties suggest extensive discovery, I

explore with them what their real needs are and suggest limitation on the scope and extent

of discovery.”


A majority of respondents (64.1%) also claimed, either usually or always, to

“actively monitor discovery and remain attuned to discovery issues.” While

virtually all (98.5%) purported to “respond promptly to party motions regarding

discovery,” there was also heavy emphasis (85.9%) on first trying to work things

out informally, perhaps through a conference call. A majority (60.9%) would

usually or always “mediate” discovery disputes before rendering an order.136

Table 4. Discovery Management


with respect to discovery in arbitration?



I do not involve myself in discovery

unless one or both parties request

my involvement.

10.9%

(14)

43.8%

(56)

7.8%

(10)

20.3%

(26)

17.2%

(22)

I try to discourage arbitrating parties

from basing their discovery on the

Federal Rules of Civil Procedure or

similar procedures.

44.5%

(57)

30.5%

(39)

3.1%

(4)

17.2%

(22)

4.7%

(6)

I encourage parties to place limits

on the scope of discovery.

64.1%

(82)

29.7%

(38)

2.3%

(3)

3.9%

(5)

0.0%

(0)

I point out to parties the costs of

using court-like discovery in

arbitration.

43.0%

(55)

35.9%

(46)

4.7%

(6)

12.5%

(16)

3.9%

(5)

I work with counsel to limit or

streamline discovery.

59.4%

(76)

31.3%

(40)

6.3%

(8)

3.1%

(4)

0.0%

(0)

I attempt to “mediate” disputes over

discovery before rendering orders

regarding discovery.

24.2%

(31)

36.7%

(47)

2.3%

(3)

29.7%

(38)

7.0%

(9)

When discovery issues arise, I first

try to address the issues informally

(such as, for example, through a

conference call in which the parties’

positions are explored).

49.2%

(63)

36.7%

(47)

3.9%

(5)

9.4%

(12)

0.8%

(1)

I respond promptly to party motions

regarding discovery.

84.4%

(108)

14.1%

(18)

0.8%

(1)

0.8%

(1)

0.0%

(0)

I actively monitor discovery and

remain attuned to potential

discovery issues.

37.5%

(48)

26.6%

(34)

7.8%

(10)

23.4%

(30)

4.7%

(6)

136 One response stated, “Whenever a disagreement arises, the parties are instructed

immediately to schedule a conference call with the Panel so it can be resolved without

jeopardizing the hearing date(s).” Another respondent commented that the panel chair will

sometimes be designated as “discovery master.”


V. HEARING MANAGEMENT

Along with discovery and motion practice, effective management of

arbitration hearings is a key challenge for arbitrators seeking to promote speed,

efficiency and economy in proceedings.137 An extensive series of Survey queries

sought information about experienced arbitrators’ use of a wide variety of

approaches to managing arbitration hearings. The questions were based on a

variety of “major steps” proposed by the Commentary accompanying the CCA

Protocols for Expeditious, Cost-Effective Arbitration.138 The results are

summarized in Table 5.

Table 5. Hearing Management


with respect to arbitration hearings?

Always Usually

About

half

the

time

Sometimes Never

I urge counsel to focus on the

probativeness of evidence and not its

admissibility.

25.8%

(33)

39.8%

(51)

6.3%

(8)

19.5%

(25)

8.6%

(11)

I receive virtually all non-privileged

evidence, and discourage traditional

objections (hearsay, foundation,

etc.).

26.6%

(34)

48.4%

(62)

6.3%

(8)

15.6%

(20)

3.1%

(4)

I work with counsel to establish an

order of proof that is most

appropriate for that particular case.

25.0%

(32)

39.8%

(51)

4.7%

(6)

21.9%

(28)

8.6%

(11)

I require parties to submit a joint

collection of core exhibits.

39.1%

(50)

37.5%

(48)

7.8%

(10)

9.4%

(12)

6.3%

(8)

I require parties to submit tabbed,

indexed exhibits in advance of the

hearing, and advise counsel that all

such exhibits will be received en

masse at the start of the hearing

unless privileged or genuinely

challenged as to authenticity.

53.1%

(68)

31.3%

(40)

2.3%

(3)

7.8%

(10)

5.5%

(7)

I require that parties show

demonstrative exhibits to each other

a reasonable time before their use in

hearing.

46.9%

(60)

31.3%

(40)

6.3%

(8)

10.9%

(14)

4.7%

(6)

137 See CCA PROTOCOLS, supra note 95, at 9-10 (too-lengthy hearings identified as

one of the reasons arbitration often fails to meet the desires of business users for speed,

efficiency and economy). 138 See id. at 75-76.


I ask counsel to consider the use of

written direct testimony for

witnesses.

13.3%

(17)

28.1%

(36)

8.6%

(11)

35.2%

(45)

14.8%

(19)

I establish procedures to narrow and

highlight matters on which opposing

experts disagree.

10.9%

(14)

38.3%

(49)

11.7%

(15)

28.9%

(37)

10.2%

(13)

I require experts to confer before the

hearing and provide arbitrators with

lists of the points on which they

agree or disagree.

1.6%

(2)

8.6%

(11)

10.9%

(14)

40.6%

(52)

38.3%

(49)

I try to limit the presentation of

duplicative or cumulative testimony.

47.7%

(61)

41.4%

(53)

2.3%

(3)

7.8%

(10)

0.8%

(1)

I accept affidavits or pre-recorded

testimony regarding less critical

matters.

22.7%

(29)

39.8%

(51)

4.7%

(6)

29.7%

(38)

3.1%

(4)

I establish and maintain a realistic

daily schedule for the hearing.

75.0%

(96)

21.9%

(28)

1.6%

(2)

0.8%

(1)

0.8%

(1)

I encourage parties to employ a

“chess clock” that limits the total

number of hours available to counsel

for examination and argumentation.

4.7%

(6)

18.0%

(23)

7.8%

(10)

39.8%

(51)

29.7%

(38)

At some point during each hearing

day, I discuss with counsel any

administrative matters that need

attention.

61.7%

(79)

32.0%

(41)

2.3%

(3)

3.1%

(4)

0.8%

(1)

At the close of each hearing day, I

confirm plans and explanations for

the following day(s).

66.4%

(85)

28.9%

(37)

2.3%

(3)

2.3%

(3)

0.0%

(0)

I tell counsel when a point has been

understood and they can move on, or

when a point was not understood and

requires clarification.

39.1%

(50)

46.1%

(59)

5.5%

(7)

9.4%

(12)

0.0%

(0)

I make sure that, well prior to the

hearing, counsel work out all

logistical arrangements (such as, for

example, transcripts, shared

projection equipment, etc.).

70.3%

(90)

24.2%

(31)

2.3%

(3)

3.1%

(4)

0.0%

(0)

I take witnesses out of turn when

necessary.

70.3%

(90)

26.6%

(34)

2.3%

(3)

0.8%

(1)

0.0%

(0)

I tell parties that they are prohibited

from running out of witnesses on

any given day.

7.0%

(9)

25.8%

(33)

4.7%

(6)

21.1%

(27)

41.4%

(53)

The data support the conclusion that many of the listed practices are

frequently used by experienced arbitrators before or during arbitration hearings.

In advance of hearings, most respondents usually (or always) work with counsel to

establish an appropriate order of proof (64.8%); make sure that, well prior to the

hearing, counsel work out logistical arrangements (94.5%); require parties to submit


a joint bundle of core exhibits (76.6%); require the submission of tabbed, indexed

exhibits prior to hearing, admitted en masse (84.4%); and require parties to show

demonstrative exhibits to each other a reasonable time before the hearing (78.2%).

In addition, most of the respondents usually or always urge counsel to focus on

the probativeness of evidence rather than its admissibility (65.6%); discourage

traditional objections (hearsay, etc.) (75.0%); try to limit the presentation of

duplicative or cumulative testimony (89.1%); accept affidavits or pre-recorded

testimony regarding less critical matters (62.5%); and tell counsel when a point has

been understood and they can move on, or when it was not understood and requires

clarification (85.2%). During the course of hearings they establish and maintain a

realistic daily hearing schedule (96.9%) and take witnesses out of order when

necessary (96.9%). They usually or always have a daily discussion with counsel on

administrative matters that need attention (93.7%); and, at the close of each hearing

day, confirm plans and expectations for the following day(s) (95.3%).

Some other practices on the list appear to be used more sparingly or

sporadically. These include asking counsel to consider the use of written direct

testimony for witnesses,139 establishing procedures to narrow and highlight

matters on which opposing experts agree, requiring experts to confer before the

hearing and providing the arbitrators with lists of the points on which they agree

or disagree,140 and encouraging the parties to employ a “chess clock” that limits

the total number of hours available to counsel for examination and argument.141

If the Survey data are any indication of general trends, it appears that

experienced arbitrators are now placing great emphasis on a wide range of tools

for actively managing hearings, just as they are tending to take proactive

approaches to the handling of dispositive motions and to discovery.

VI. DELIBERATING AND RENDERING ARBITRATION AWARDS

Recent empirical studies indicate several interrelated concerns about

arbitration lie at the heart of resistance to its use by some businesses.142 These

include the difficulty of successfully appealing arbitration awards, the fear that

arbitrators will not follow applicable legal standards in making an award, and the

perceived propensity of arbitrators to indulge in inappropriate compromises in

award-making.143

In order to assess the extent to which concerns about arbitration are justified,

the CCA/Straus Institute Survey contained several pertinent questions. A query

regarding subjects’ experience with appellate arbitration, a potential substitute for

139 See Stipanowich, Reflections, supra note 1, at 358. 140 For a discussion of expert “hot tubbing,” see id. at 359. 141 For a discussion of the “chess clock” approach, see id. 142 See Stipanowich & Lamare, supra note 2, at 51-54. 143 See id.; Stipanowich, Reflections, supra note 1, at 328-33.


a public judicial appeal, was discussed above.144 Table 6 summarizes group

responses to a series of other questions.

Table 6. Award Deliberation and Rendering

Q: As an arbitrator, how often do you do the

following in rendering a final award?

Always Usually

About

half the

time

Sometimes Never

In the absence of a contrary

agreement between the parties, I

do my best to ascertain and

follow applicable law in

rendering an award.

86.7%

(111)

11.7%

(15)

0.0%

(0)

1.6%

(2)

0.0%

(0)

I feel free to follow my own

sense of equity and fairness in

rendering an award even if the

result would be contrary to

applicable law.

0.8%

(1)

0.0%

(0)

0.0%

(0)

25.0%

(32)

74.2%

(95)

I invite counsel to brief legal

issues in the case.

54.7%

(70)

35.2%

(45)

3.9%

(5)

6.3%

(8)

0.0%

(0)

I carefully read and reflect upon

legal arguments and briefs

presented by counsel.

97.7%

(125)

2.3%

(3)

0.0%

(0)

0.0%

(0)

0.0%

(0)

I negotiate with other arbitrators

(when serving on multi-member

tribunals) regarding the quantum

of damages to be awarded.

26.6%

(34)

18.0%

(23)

7.0%

(9)

38.3%

(49)

10.2%

(13)

The data indicate that where legal issues are in play, experienced arbitrators

tend to be conscientious in paying heed to them and addressing them in a manner

consistent with applicable law. All respondents claimed, usually or always, to

“carefully read and reflect upon legal arguments and briefs presented by counsel.”

Nearly all asserted that, in the absence of an agreement to the contrary, they “do

[their] best to ascertain and follow applicable law in rendering an award.” There

was also a strong tendency among respondents to “invite counsel to brief legal

issues in the case.”

There remain, however, two responses that indicate the need for further

inquiry. First of all, although nearly three-quarters (74.2%) of respondents never

“feel free to follow [their] own sense of equity and fairness in rendering an award

even if the result would be contrary to applicable law,” the other quarter (25.8%)

do, at least some of the time. It is not entirely clear how these latter arbitrators

144 See supra Part III.E.


interpret their mandate, but their response should encourage deeper discussion

about the ethical as well as legal implications of such choices.145

In light of longstanding concerns regarding arbitrator compromise, moreover,

it is also quite interesting to see that nearly nine-tenths of respondents (89.9%)

acknowledge that, at least sometimes, they “negotiate with other members of a

tribunal respecting the quantum of damages to be awarded.” In order to

understand the precise import of these responses and their implications for users,

further investigation and discussion is appropriate.146

VII. ARBITRATION AND SETTLEMENT147

Early settlement of a dispute can be a uniquely effective way of minimizing

cost and cycle time in dispute resolution.148 But the role of arbitrators in setting

the stage for or facilitating settlement has not been given significant attention, at

least in places like the U.S.149 For this reason, the CCA/Straus Institute Survey

included questions seeking information regarding their experiences with and

perceptions of settlement during arbitration.

A. Frequency of Settlement

Respondents were asked to provide estimates of the settlement rate for cases

they arbitrated (a) during the past five years and (b) during previous years. The

respective data are presented side-by-side in Chart OO.

145 These implications, as well as proposals for addressing them, are detailed in

Stipanowich, Reflections, supra note 1, at 326-41. 146 See id. 147 This subsection is adapted from Thomas J. Stipanowich & Zachary P. Ulrich,

Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators

Play, 6 Y.B. ON ARBITRATION & MEDIATION 1 (2014). 148 See id. at 5-6. 149 See id. at 6.


Chart OO. Settlement Prior to First Hearing

(Comparing Past 5 Years and Previous Years)

Q: Roughly what percentage of cases in which you were an

arbitrator settled prior to the first arbitration hearing?

The majority of respondents indicated that higher proportions of their

caseloads settled pre-hearing during the last five years than prior to that time.

This trend is indicated both by a relative decrease in respondents reporting lower

proportions of their caseloads as having settled (e.g., fewer respondents reporting

that “31% to 40%,” or less, of their caseload settled pre-hearing) and by a relative

increase in respondents reporting higher proportions of their caseloads having

settled (e.g., more respondents reporting that “41% to 50%” and “[m]ore than

50%” of their caseloads settled pre-hearing).

The Survey also asked respondents, “Roughly what percentage of cases in

which you were an arbitrator settled at any time prior to award?” Chart PP shows

results comparing respondent estimates of settlement rates for the past five years

with their estimates of settlement rates for earlier years.

4.6% (6)

26.0% (34)

13.0% (17)

12.2% (16)

15.3% (20)

13.7% (18)

15.3% (20)

3.1% (4)

30.5% (40)

14.5% (19)

17.6% (23)

16.0% (21)

9.2% (12)

9.2% (12)

0% 5% 10% 15% 20% 25% 30% 35%

0%

1% to 10%

11% to 20%

21% to 30%

31% to 40%

41% to 50%

More than 50%


Per

cen

tag

e o

f C

ase

s



Chart PP. Settlement Prior to Award

Q: Roughly what percentage of cases in which you

were an arbitrator settled prior to award?

Again, participants were asked to distinguish between their experiences

“[p]rior to [five] years ago” and those within the past five years. The comparative

responses to these questions in Chart PP tell much the same story as those

displayed in Chart OO, above. Experienced arbitrators indicate that, during the

past five years, higher proportions of their caseloads settled pre-award than before

that time. However, while the data reflect a general upward shift in the extent of

pre-award settlement as well as the overall number of arbitrators whose cases are

settling pre-award, the data also reflect dramatic variances in settlement rates

among arbitrators.

As might be expected, the data indicate that some disputes that did not settle

prior to hearings are settled during hearings. (For example, while 15.3% of

respondents indicated “[m]ore than 50%” of their caseload settled pre-hearing in

the past five years, 22.9% of the same respondent pool indicated that more than

5.3% (7)

21.4% (28)

9.2% (12)

9.2% (12)

13.7% (18)

18.3% (24)

22.9% (30)

3.1% (4)

26.0% (34)

13.7% (18)

13.7% (18)

14.5% (19)

13.7% (18)

15.3% (20)

0% 5% 10% 15% 20% 25% 30%

0%

1% to 10%

11% to 20%

21% to 30%

31% to 40%

41% to 50%

More than 50%


Per

cen

tag

e o

f C

ase

s



50% of their cases settled pre-award (including those that settled after the hearing

had begun). These results underscore the potential impact of arbitrators’ case

management at all stages of the arbitral process.

B. Concern with Informal Settlement

Survey participants were also asked, “How often, if ever, are you concerned

with informal settlement of the cases before you as an arbitrator?” As reflected in

Chart QQ, more than half of participants responded, “Never.” Another third

(34.4%) stated they concern themselves with settlement “Sometimes.” And only

about 12% (11.8%) of the respondents indicated they concern themselves with

settlement as much as half the time.

Chart QQ. Concern with Informal Settlement

Q: How often, if ever, are you concerned with informal

settlement of the cases before you as an arbitrator?

These responses are surprising given the heightened incidence of settlement in

recent years. It is possible that at least some portion of those who answered

“Never” to the Survey question did so because they view their roles and

responsibilities strictly within the context of superintending complete arbitration

processes that culminate in awards, and therefore do not believe it necessary or

appropriate to actively consider or engage in any way with the parties’ collateral

settlement efforts. Their view of their role in case management, in other words, is

1.6%

(2)

5.5%

(7)4.7%

(6)

34.4%

(44)

53.9%

(69)

0%

10%

20%

30%

40%

50%

60%

Always Usually About half the

time

Sometimes Never


wholly framed in terms of the adjudicative dimension – hearing the case and

rendering an award – and treats the possibility that the case might be disposed of

through settlement, however likely that might be, as irrelevant to their function as

arbitrators.150 Some, too, may have interpreted the question as asking, in essence,

“How often do you regard yourself as personally responsible for settling the

case?” or, in a more extreme vein, “How often do you put on the hat of a mediator

to facilitate settlement of an arbitrated case?” They might feel a sense of

discomfort with a role they believe requires them to employ skills or mindsets that

are very different from those of an adjudicator.151 More importantly, the question

may have stirred up the concerns of some respondents that too active a role in

facilitating or mediating settlement “might be perceived as incompatible with the

arbitrator’s duty of impartiality,”152 potentially undermining the arbitral

function.153 Finally, the focus on “seeing the case through to an award” may be

reinforced by the pressures some arbitrators may feel to sustain a sufficiency of

work hours in an increasingly competitive environment.154

For some or all of the foregoing reasons, many experienced commercial

arbitrators are reticent about the arbitral role in settlement. However, the Survey

results also indicate that many arbitrators tend to recognize and actively embrace

opportunities to promote settlement of arbitrated cases through their management

of the arbitration process. Each of the 59 respondents who reported concerning

themselves with informal settlement at least “Sometimes” were asked to estimate

the frequency with which they engage in particular behaviors that may increase

the likelihood of informal settlement. As reported in Table 7, the large majority of

this group indicated that their management of the pre-hearing process, summary

disposition of issues, and rulings on discovery matters prompt settlement in at

least some cases. Indeed, nearly one-fourth of respondents (23.7%) indicated that

their summary disposition of issues prompts informal settlement in about half or

more of their cases, and more than a quarter (25.4%) responded that their

management of pre-hearing processes plays an important role in pre-hearing

settlements in about half or more of their cases.

150 The CEDR Commission on Settlement in International Arbitration concluded that

“[a]n arbitral tribunal has a primary responsibility to produce an award, which is binding

and enforceable,” although the arbitral tribunal “should also take steps to assist the parties

in achieving a negotiated settlement of part or all of their dispute.” CEDR Commission on

Settlement in International Arbitration (Nov. 2009) at 2, ¶¶ 2.4.1-2.4.2, available at

http://www.cedr.com/about_us/arbitration_commission/Arbitration_Commission_Doc_Fi

nal.pdf. 151 Sophie Nappert & Dieter Flader, A Psychological Perspective on the Facilitation

of Settlement in International Arbitration - Examining the CEDR Rules, 2 J. INT’L DISP.

SETTLEMENT 459, 461 (2011). 152 Id. 153 Id. 154 Stipanowich & Ulrich, supra note 147, at 6-7.


Table 7. Practices Encouraging Informal Settlement

Q: As an arbitrator, how often do you do the following with

respect to informal settlement of the cases before you?

Always Usually

About

half the

time

Sometimes Never

Through my management of the

pre-hearing process, I play an

important role in helping to settle

the case prior to hearing.

0.0%

(0)

20.3%

(12)

5.1%

(3)

57.6%

(34)

16.9%

(10)

My summary disposition of issues

prompts informal settlement of

the entire case.

0.0%

(0)

6.8%

(4)

16.9%

(10)

66.1%

(39)

10.2%

(6)

My rulings on discovery matters

prompt informal settlement of the

entire case.

0.0%

(0)

3.4%

(2)

3.4%

(2)

72.9%

(43)

20.3%

(12)

VIII. BRANCHING OUT: OTHER INTERVENTION ROLES

In the evolving and increasingly competitive field of conflict resolution, it is

to be expected that many dispute resolution professionals will try to employ their

skills in multiple settings and roles. The Survey sought information regarding

experienced arbitrators’ activities as dispute resolution professionals acting in

various capacities.

A. Non-Binding or Advisory Arbitration

Non-binding or advisory arbitration is sometimes employed in court-

connected ADR programs as well as some industry programs.155 When asked,

“Have you rendered an arbitration award that the parties had previously agreed

would be non-binding or advisory?,” roughly one-quarter of this group of

experienced arbitrators (33 of 131 respondents, or 25.2%) answered

affirmatively.

B. Early Neutral Evaluation, Case Assessment

The 2011 Fortune 1,000 Corporate Counsel Survey drew attention to many

companies’ current use of early neutral evaluation and early assessment

processes.156 These approaches are frequently engaged in the early stages of

litigation or private dispute resolution, and may involve assessments by neutrals

retained by or for both parties, or by persons retained as consultants by individual

155 See RESOLVING DISPUTES, supra note 17, at 555-57 (discussing National

Advertising Division non-binding evaluation and court-connected arbitration). 156 See supra note 2, at 52.


parties.157 Assessments may be part of a systematic process or ad hoc.158

Sometimes they are driven by the demands of e-discovery.159

The Survey group was asked, “Have you participated as an ‘early neutral

evaluator’ of a case, or made a formal assessment or evaluation of the likely

outcome of a case, as part of an early case assessment?” About two-fifths of the

group (56 of 131 respondents, or 42.7%) indicated that they had done so.

C. Mediation

Mediation is the primary third-party intervention strategy for dispute

resolution in large companies,160 and there are indications that the use of

mediation will continue to grow globally.161 As discussed in Part X below,

moreover, three out of five (60.1%) respondents to the CCA/Straus Institute

Survey believed the growth of “mediation and other conflict management

approaches” was having a significant or moderate impact on their arbitration

practice.162 The great majority (82.8%) expected the use of mediation to increase

in the future.163

Today it is not uncommon for neutrals to render services as arbitrators and

also to mediate cases. As reflected in Chart RR, although 15.9% of arbitrators

responding to the CCA/Straus Survey do not mediate, over half (57.9%) mediate

at least occasionally (with the percentage of the work time devoted to mediation

ranging between 1% and 25%). Less than one-tenth of respondents (7.9%) appear

to devote over half of their work time to mediating.164

157 Id. 158 Id. 159 Id. 160 Id. at 41, 44-54 (survey of Fortune 1,000 corporate counsel indicates growing use

of mediation and expectations that their companies’ use of mediation is likely to continue

in the future). 161 See id.; Peter Cresswell, The Future of Arbitration in the Changing World of

Dispute Resolution, 79(3) ARBITRATION 288 (2013) (predicting “that the steady increase

in the use of mediation will continue”). 162 See infra Table 8. 163 See infra Part XII, Table 10. 164 The subject of dispute resolution professionals practicing as mediators as well as

arbitrators is discussed in Stipanowich, Reflections, supra note 1, at 385-86.


Chart RR. Mediation Practice as Percentage of Working Time

Q: What percentage of your work time, if any, is

currently devoted to practice as a mediator?

D. Med-Arb165

There has long been a debate over whether mediators should assume the role

of arbitrator in the event mediation does not resolve all of the issues in dispute, or

whether a sitting arbitrator should accept the parties’ invitation to put on a

mediator’s hat.166 In the United States and many other places, the traditional view

165 This subsection is adapted from Stipanowich & Ulrich, supra note 147, at 10, 25-28. 166 See generally COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 20-27,

28-33 (as a part of the final report of the CPR Commission on the Future of Arbitration,

offering extensive discussion of issues associated with mixed roles and offering detailed

guidance on the subject). Cf. Peter Robinson, Adding Judicial Mediation to the Debate

about Judges Attempting to Settle Cases Assigned to Them for Trial, 2006 J. OF DISP.

RESOL. 335 (2006) (exploring conflicting perspectives and practices of California judges

regarding their role in settling cases assigned to them for trial). See also Nappert &

Flader, supra note 151, at 461. Perspectives on dispute resolvers playing multiple roles is

15.9%

(20)

37.3%

(47)

20.6%

(26)18.3%

(23)

6.3%

(8)

1.6%

(2)

0%

5%

10%

15%

20%

25%

30%

35%

40%

0% 1%-10% 11%-25% 26%-50% 51%-75% 76%-100%

Per

cen

tag

e o

f R

esp

on

den

ts

Percentage of Work Time


has been that although dual-role “med-arb” may offer perceived benefits from the

standpoint of increased efficiency (since a single individual is conducting the

entire proceeding) and greater impetus to settle (since the mediator carries a “big

stick” as the final adjudicator if negotiations fail), it is usually inadvisable since

the roles of mediator and arbitrator “are very different in focus [and] in some

respects incompatible.”167 Nevertheless, there is evidence that dispute resolution

professionals sometimes play multiple roles in helping to resolve a dispute.168

Those 59 Survey respondents who indicated they were at least “sometimes”

concerned with the informal settlement of cases before them were asked about

their experiences changing roles or playing multiple roles (that is, as both an

arbitrator and mediator) in a particular case. Of those 59 individuals, just under

half (45.8%) indicated that they had “sometimes” mediated a dispute in which

they had been appointed an arbitrator, as shown in Chart SS below.

Chart SS. Mediation of Arbitrated Disputes

Q: How often, if ever, have you mediated disputes in

which you have been appointed as an arbitrator?

heavily influenced by culture. See generally Shahla F. Ali, The Arbitrators Perspective:

Cultural Issues in International Arbitration, Ch. 6, in INTERNATIONAL COMMERCIAL

ARBITRATION PRACTICE: 21ST CENTURY PERSPECTIVES (Horacio A. Grigera Naon & Paul

E. Mason eds., 2010). 167 COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 20-21. 168 See RESOLVING DISPUTES, supra note 17, at 605 (citing informal survey of

commercial and employment mediators).

0.0%

(0)

0.0%

(0)

0.0%

(0)

45.8%

(27)

54.2%

(32)

0%

10%

20%

30%

40%

50%

60%

Always Usually About half the

time

Sometimes Never


The respondent sub-group was also asked, “Have you served as both a

mediator and arbitrator with respect to the same dispute, where during arbitration,

the parties asked you to switch to the role of an arbitrator?” More than nine-tenths

of the group (25 of 27, or 92.6%) answered, “Yes.” In response to the further

question, “Have you served as both a mediator and an arbitrator with respect to

the same dispute, where the parties agreed beforehand to have you first mediate

and then arbitrate, if necessary?” two-thirds of the group (18 of 27, or 66.7%)

responded affirmatively. Thus, there is support for the notion that despite

conventional concerns among U.S. advocates and arbitrators respecting neutrals

wearing multiple hats, quite a few arbitrators have experience with forms of single

neutral med-arb.169

IX. PROVIDER ORGANIZATIONS

A. Current Efforts of Arbitration Service Providers

In the competitive marketplace of conflict resolution, provider organizations

are playing an increasingly active and visible role, not only in providing

administration for arbitration processes but in promoting new rules, softlaw,170 and

other templates for arbitration and dispute resolution practice.171

Respondents were asked their opinions regarding quality- or process-

improvement efforts by arbitration service provider organizations under whose

rules they had arbitrated. The results are summarized in Chart TT below.

169 See Stipanowich & Ulrich, supra note 147, at 25-28 (discussing this Survey data

and similar data from the IAM/Straus Institute Survey, supra note 18). 170 Thomas Stipanowich, Soft Law in the Organization and General Conduct of

Commercial Arbitration Proceedings, in SOFT LAW IN INTERNATIONAL ARBITRATION

(2014) (“soft law guidelines usually function as a compass . . . rather than a straitjacket,

although sometimes they influence contract language or modifications to arbitration rules

and procedures”). 171 See Thomas J. Stipanowich, Behind the Neutral: The Critical Role of Provider

Institutions, AAA HANDBOOK ON COMMERCIAL ARBITRATION (2d ed. 2010); REDFERN &

HUNTER, supra note 1, at 237.


Chart TT. Arbitration Services and User Satisfaction

Q: What are arbitration “provider” organizations under whose

rules you have arbitrated doing to improve or maintain the quality

of arbitration services and user satisfaction with arbitration, if anything?

Over one-quarter of respondents (31 individuals, or 27.4% of the group) pointed to arbitral institutions’ regular revision and addition of procedural rules as a means by which they improve their services and user satisfaction. Many comments regarding service-providers’ rule changes focused on the ways in which new rules are aimed at making arbitration more efficient, cost- and time-

6 (5.3%)

7 (6.2%)

7 (6.2%)

9 (8.0%)

9 (8.0%)

11 (9.7%)

16 (14.2%)

25 (22.1%)

31 (27.4%)

0% 10% 20% 30%

Improved quality of case

managers

Increased monitoring of ongoing

cases

Focus on arbitration cost and

time savings

Streamlined case facilitation

Requiring continuing

education/training of panelists

Higher quality panelists/higher

panel standards

Seeking/using panelist and user

feedback

Providing continuing

education/training for panelists

Modifying rules as industry needs

evolve


effective.172 Further emphasizing the importance of adapting institutional arbitration procedures to constantly shifting “industry dynamics,” almost one-quarter (25 individuals, or 22.1%) indicated that providing continuing education and training opportunities for arbitrators on their panels was a means by which arbitration service providers improved their services and increased their value to users. Nine respondents (8.0%) emphasized that requiring ongoing training and education had increased the quality of panels in some institutions, particularly the American Arbitration Association (AAA).173 Another 16 respondents (14.2%) mentioned service-providers’ efforts to solicit and implement feedback from panelists and users, particularly regarding “arbitrators[’] performance,” “award form and quality,” as well as “periodic user surveys and focus groups to determine the parties’ and the lawyers’ level of satisfaction with the arbitration services.” A smaller minority (nine responses, or 8.0%) noted the “streamlining” of case facilitation; seven responses (6.2%) mentioned institutions’ focus on user cost and time savings as means by which arbitral institutions have maintained or improved their services and user satisfaction. Arbitration-process efficiency was also the focus of another seven responses (6.2%) emphasizing how service-provider staff have become increasingly active in monitoring ongoing cases; six responses (5.3%) spoke to the improved quality of case managers overall. A further four responses (3.5%) stated that arbitral institutions have maintained or improved their services and user satisfaction by placing an increased emphasis on minimizing discovery and by using administrative processes to ensure potential conflicts between parties and panelists are disclosed before panelists are selected. Much of the commentary spoke in general terms, although many respondents singled out particular provider institutions for their efforts to maintain or improve services and user satisfaction.174

B. Areas for Further Improvement

In an effort to create a balanced assessment of respondent views regarding

arbitral institutions’ services and user satisfaction, the Survey also asked

participants to consider “[i]n what ways, if any, might their efforts be improved?”

A total of 103 responses were received.

Responses touched on a wide range of topics. Eleven subjects (10.7% of the

respondent pool) commented that arbitration service providers should continue

present efforts. Another nine individuals (8.7%) advocated for a general increase

172 These and other, similar comments suggest a connection between recent arbitral

institutions’ rule changes and recent efforts by the same institutions to streamline their

case facilitation processes as well as focus on cost and time savings generally. 173 Given the relative size and breadth of AAA arbitration panels, this is the U.S.

arbitration provider institution with which respondents were most likely to have formed a

professional connection. Some other provider institutions field much smaller panels of

neutrals; some, like JAMS, have exclusive relationships with arbitrators. 174 Because the Survey question did not ask subjects to report on or otherwise name

any particular arbitration service providers, however, many respondents completed this

question without specifying any arbitral institution.


in the quality of case managers on the staff at arbitral institutions, encouraging

providers to offer better compensation and benefits so as to minimize turnover

while improving hiring standards and training for those case managers currently

on staff.175 In the same vein, eight respondents (7.8%) each responded that

improved communication between institution staff and panelists, including faster

responses to arbitrators’ procedural questions,176 and shorter procedural deadlines

– especially before and during panelist screening and selection – were important

ways in which service providers could enhance the quality of their services and

raise user-satisfaction levels. Seven individuals (6.8%) indicated there should be

more stringent admission requirements for institutional arbitration panels; one

suggested that panelists should be able to rate one another using a system to

inform panelist retention decisions.177 Five individuals (4.9% of the respondent

pool) commented that institutions should increase opportunities for panelist

feedback from users, while another four individuals (3.9%) stated that panelists

should be given more authority to limit the efforts of litigation-oriented counsel to

treat arbitral processes as they would a trial, including authority to limit on

discovery.178 There were a number of other topics touched upon by multiple

respondents;179 several offered differing perspectives on the issue of diversity.180

175 Those respondents who commented on this issue seemed to be in consensus,

generally, that as one survey participant wrote, “[T]he individual case managers vary

greatly in ability and knowledge,” while a few respondents wrote that “[p]roviders could

improve case management through a) more training of case managers, and b) higher

compensation to improve retention of case managers.” Correspondingly, two respondents

wrote that services could be improved through “[b]etter instruction to case managers of the

role of arbitrators in interpreting the rules” and if service providers would “authorize

administrators, case managers to be more flexible (or expansive) in following set

organization protocols and rules.” One respondent’s statement perhaps encapsulates the

general sentiment of those who wrote on this topic: “Case managers need to be . . . attuned

to arbitrator needs as well as parties. In addition, [they] must be supportive of efforts to

renew the promise of arbitration.” 176 For instance, one respondent wrote that “[a]dministration and communication with

case managers still needs improvement. I myself have written emails and left voicemail

messages that remained unanswered for what I consider to be unacceptable periods of time.” 177 One respondent wrote specifically that “[t]ribunals should insist on confidential

comments about fellow arbitrators on multi-arbitrator panels so that the ‘problem’

arbitrators are identified and either counseled or removed from arbitrator lists.” 178 One individual stated that service providers should be “educating the bar and

prospective parties that arbitration has significant differences from court litigation and what

these differences are” while another respondent suggested that there should be “[b]etter

education of the users about the extent of their right to control the process and how they

might do so.” Another respondent suggested “[r]equiring the participation of non-attorney

representatives during all preliminary conferences, scheduling conferences[,] and discovery

and motion practice conferences, to assist the arbitr[a]tor in determining what kind of

process the party truly desires, and not just what outside litigation counsel assert they want.”

Others stated that arbitration service providers should be “[e]nabling[ ]panelists to account

for, and reign in, litigation-oriented counsel.” One respondent urged providers to

[a]dopt stronger rules for control and limitation of discovery because [c]ompetent


X. TRENDS AFFECTING DOMESTIC (U.S.) ARBITRATION PRACTICE

Recent advances in technology, the growing usage of mediation and other

dispute resolution and conflict management processes, the globalization of

international business and relations, and other trends have the potential to

dramatically transform processes for the management and resolution of contract

disputes, including arbitration.181 The Survey therefore included questions touching

on perceptions regarding the impact on arbitration practice of a number of current

developments in the previous ten years. The results are summarized in Table 8.

Table 8. Factors’ Influence throughout Previous Decade

Q: To what extent have the following factors affected

your domestic arbitration practice during the last ten years?

Significantly Moderately Minimally Not at

all

Not

sure

Information technology 48.4%

(62)

37.5%

(48)

8.6%

(11)

3.1%

(4)

2.3%

(3)

Globalization 11.7%

(15)

28.9%

(37)

25.0%

(32)

21.1%

(27)

13.3%

(17)

Changes in business

practices and attitudes

11.7%

(15)

46.9%

(60)

21.1%

(27)

13.3%

(17)

7.0%

(9)

Changes in the way

arbitrations are

conducted

7.8%

(10)

45.3%

(58)

25.8%

(33)

15.6%

(20)

5.5%

(7)

lawyers will use the opportunity to take discovery. They are forced to do so to

avoid any suggestion of lack of preparation and only too willingly expand

discovery for their own reasons. Tighter limitations would eliminate this problem.

As an arbitrator it is difficult to restrain competent lawyers where all parties have

agreement on how they wish to proceed. Limits in the rules would be helpful. 179 These responses include, among other things, respondents’ desire for an increased

focus on leveraging pre-award settlement opportunities (three individuals, 2.9%); and for

service providers to solicit more feedback from users (three individuals, 2.9%). 180 One survey participant wrote that “[t]hey [the service providers] all should rely on

the more experienced members of their panels and forego efforts to be more inclusive or

diversified.” Another suggested that service providers would benefit from

[r]ecruitment of a broader range of potential arbitrators to serve. Most are trying

but the panels remain insufficiently diverse, not just as to the gender, race, etc.

but also as to personal and professional life experiences. The vast majority of

arbitrators understandably come from the world of commerce while arbitration is

now the method of choice to resolve far more diverse disputes, including

employment, consumer, medical and others. 181 See, e.g., Stipanowich, Reflections, supra note 1, at 387-92 (discussing the

implications of globalization, technological advancement, and the insights of behavioral

science and empirical data collection on arbitration practice).


Growing use of

mediation and other

conflict management

approaches

20.3%

(26)

39.8%

(51)

24.2%

(31)

7.8%

(10)

7.8%

(10)

Insights provided by

studies on conflict

psychology (e.g.,

cognition, perception,

decision-making)

9.4%

(12)

18.8%

(24)

39.8%

(51)

20.3%

(26)

11.7%

(15)

The large majority of respondents (85.9%) indicated that information

technology had had a “moderate” or “significant” impact on their arbitration

practice; almost half (48.4%) viewed the impact of IT as “significant.” The

second greatest impact on arbitration was ascribed to “the growing use of

mediation and other conflict management practices,” with a majority (60.1%)

indicating a “moderate” or “significant” impact, and more than a fifth (20.3%)

reflecting a “significant” impact.

The respondent group viewed other factors as having less important impacts:

“changes in business practices and attitudes” (58.6% “moderate” or “significant”);

“changes in the way arbitrations are conducted” (53.1% “moderate” or

“significant”); “globalization” (40.6% “moderate” or “significant”); and “insights

provided by studies on conflict psychology” (28.2% “moderate” or “significant”).

Survey subjects were also asked to indicate to what extent the foregoing

developments exerted a positive or negative effect on their own arbitration

practice, as summarized in Table 9.

Table 9. Positive and Negative Effects of Influencing Factors

Q: Have the effects of these factors on your domestic arbitration

practice during the last ten years, if any, been positive or negative?

Very

positive

Somewhat

positive

Both

positive

and

negative

Neither

positive

nor

negative

Somewhat

negative

Very

negative

Not

sure

Information

technology

23.4%

(30)

30.5%

(39)

26.6%

(34)

8.6%

(11)

6.3%

(8)

0.0%

(0)

4.7%

(6)

Globalization 9.4%

(12)

21.9%

(28)

7.8%

(10)

31.3%

(40)

0.8%

(1)

0.0%

(0)

28.9%

(37)

Changes in

business

practices and

attitudes

3.1%

(4)

26.6%

(34)

27.3%

(35)

18.8%

(24)

8.6%

(11)

1.6%

(2)

14.1%

(18)

Changes in the

way arbitrations

are conducted

12.5%

(16)

43.8%

(56)

10.9%

(14)

21.1%

(27)

3.1%

(4)

0.8%

(1)

7.8%

(10)


Growing use of

mediation and

other conflict

management

approaches

12.5%

(16)

35.2%

(45)

15.6%

(20)

19.5%

(25)

7.0%

(9)

0.8%

(1)

9.4%

(12)

Insights provided

by studies on

conflict

psychology (e.g.,

cognition,

perception,

decision-making)

7.0%

(9)

24.2%

(31)

7.0%

(9)

35.2%

(45)

1.6%

(2)

0.8%

(1)

24.2%

(31)

The collective response indicates that this group of experienced arbitrators

tends to view each of the current developments in a relatively affirmative light.

Large majorities saw each factor as having some degree of positive impact, even if

some viewed its impact was mixed. Relatively few identified developments as

having a negative impact.

Particularly positive assessments were given to “changes in the way

arbitrations are conducted” (56.3% indicating an essentially positive impact);

“information technology” (53.9% indicating an essentially positive impact); and

“growing use of mediation and other conflict management approaches” (47.7%

indicating an essentially positive impact).

At the same time, however, some negative undercurrents are observable. Two

are especially worthy of note. First of all, more than a quarter (26.6%) of

respondents indicated that “information technology” had negative as well as

positive impacts on arbitration practice, and another 6.3% saw its effect as

generally negative. Second, although many respondents (29.7%) viewed the

impact of “changes in business practices and attitudes” as a generally positive

development, nearly as many (27.3%) saw both negative and positive impacts, and

another 10.2% perceived the impact as essentially negative.

It is difficult to interpret these results because respondents may have very

different reasons for identifying a trend’s influence as positive or as negative.182

In order to provide further clarity, subjects were also asked to explain in what

ways they thought these factors positively or negatively influenced their domestic

arbitration practice. Ninety-nine respondents183 chose to elaborate on this topic,

and many of their responses are summarized in Chart UU below.

182 One respondent’s self-definition of a “positive” impact may be quite different – or

even the opposite – of another’s. For example, one arbitrator may perceive that

“globalization” here references a general trend toward the increasing usage of arbitration

for cross-border disputes while another perceives that it means an increased cultural

diversity among parties and panelists (or both). Both individuals might thus perceive

“globalization” as having “positive” or “negative” influences on arbitration practice, but

for different reasons. 183 All responses were encoded into the categories discussed here so long as the

respondent’s intent was both unambiguous and clearly fell within that category’s stated


Chart UU. Perceptions of Factors’ Influences

Q: Please explain the positive and/or negative impacts

these factors have had on your domestic arbitration practice, if any.

The most striking insight coming out of our analysis of the respondents’

comments is that the vast majority of observations about the positive or negative

impact of trends revolved to some extent around concerns about the cost, length,

and efficiency of arbitration and dispute resolution.184 Exemplary of these

concerns are the dichotomous effects arbitrators perceive as resulting from

description. Twenty responses (20.2% of the response sample) could not be categorized

but were still included in the stated sample size for purposes of accurately statistically

representing the response pool. Further, because this question was open-ended, multiple

responses included respondent statements that were able to be classified into two or more

of the stated categories, and in such instances all valid categorizations applicable to a

given response were used. 184 See supra text accompanying note 95, Parts IV.A., B. and C. (discussing the

multiple approaches to addressing such concerns).

7.1% (7)

8.1% (8)

9.1% (9)

9.1% (9)

10.1% (10)

13.1% (13)

22.2% (22)

23.2% (23)

36.4% (36)

0% 10% 20% 30% 40%

User/counsel wariness of using arbitral

processes (e.g., lack of appeal, perceived

cost/time)

Process inefficiences due to counsel who

want to "litigate" arbitration proceedings

Mediation decreasing arbitration

caseloads/causing lost income for

arbitrators

Benefits from business/user focuses on cost

and time savings

Benefits from industry-wide focus on cost

and time savings/usage of "muscular

arbitration"

Greater user awareness of ADR processes

available/increased sophistication of users

Mediation leading to increased/earlier

settlement

Technology costing time and money,

leading to discovery disputes

Technology enabling previously impossible

processes and efficiences


technology. On the one hand, over one-third (36 individuals, or 36.4% of the

subject pool) of respondents indicated they thought technology had enabled

previously impracticable approaches and related efficiencies in arbitration,

including digital “exhibit presentation” and more efficient communication and

testimony through “e-mail” and “vide[oc]onferencing,”185 On the other hand,

almost one-quarter (23 respondents, or 23.2%) indicated they believed technology

in the form of e-discovery has led to longer and more costly discovery,

“mountains” of “redundant” data and disputes concerning discovery procedures

that previously would not have occurred.186 One respondent cautioned that “[t]he

deep pocket party can, through [e]-discovery, ma[k]e the process far too

expensive for parties without deep pockets.”

The impact of mediation was another important theme. More than one-fifth of

commenters (22 individuals, or 22.2%) wrote that, during the past ten years,

185 Other examples respondents discussed included “real time access to case briefs,

prior testimony in the arbitration and presentation of argument with electronic illustration”

as well as the “facilitation [of] cases where witnesses are scattered and far away,”

“retrieval of archival evidence” and the usage of “techniques that previously were not

accessible in moderate-sized cases,” including “use of court reporters using Int[e]rnet

CART [‘Computer Access Realtime Translation’] [where] court reporting with live

reporters and paper transcript is too expensive.” One respondent commented that

“[s]imultaneous use of digitized exhibits, alone, has shortened some hearings by 50%,”

while another more specifically described how “[i]nformation technology has made it

easier to deal with . . . searching transcripts, searching exhibits [and] chronologically

reordering exhibits.” 186 Typical of respondents’ views regarding e-discovery was the following: “Properly

used, it can give the parties quicker and more cost-effective access to needed information.

Improperly used, it can cause huge wastes of time and money.” Another respondent

lamented that “IT has resulted in an explosion of redundancy of information and document

custodians as a consequence of broad email and text distribution and the replacement of

in-person and telephone conversation with e-mail and text exchanges” and that there has

been a “failure of advocates to take advantage of technical innovations (e.g., computer-

assisted discovery or ‘predictive coding’) to reduce data discovery burdens” (parenthetical

from original text).

Several respondents also noted increased incidences of discovery-related disputes

stemming directly from e-discovery, including some that may, in part, have occurred due

to lack of clarity regarding e-discovery processes in applicable rules or agreements. In the

words of one:

E-discovery leads to more discovery disputes because parties often complain that

their adversaries have not produced certain documents[.] In almost all of my

cases, documents are uncovered after a party has said that all documents are

produced either because the attorney’s request to a client’s personnel is

ambiguous or because the client did not look in the right places.

One commenter noted that “ESI [‘Electronically Stored Information’] has not been

controlled or managed under most arbitral rules versus the development of ESI in FRCP

[‘Federal Rules of Civil Procedure’][Rule] 26,” while another suggested that while

technology has enabled the retrieval of previously unavailable documentation “ . . . it

spawns a lot of controversy about protoc[o]ls for doing so.”


mediation has led to earlier settlement of arbitrated cases.187 Another nine

respondents (9.1%) offered variants of the statement that “[i]ncreased use of

mediation tends to reduce arbitration case load, but it is a good thing for clients

and dispute resolution in general.”188 Several individuals ascribed the increased

usage of mediation as due to heightened user awareness of ADR processes and

how they work (13 individuals, or 13.1%).189

Many respondents also commented on the general trend of arbitration service

providers, and individual arbitrators, to focus on saving party time and money by

streamlining or expediting arbitration procedures. Ten individuals (10.1%) noted

that the arbitration field has benefited from industry-wide focuses on cost and time

savings, including the implementation of more proactive and energetic techniques to

streamline or expedite arbitration processes;190 another nine respondents (9.1%)

indicated that the arbitration field has benefited from users’, and especially

businesses’, increased focus on reducing the cost and time required to arbitrate

disputes.191

187 See Stipanowich & Ulrich, supra note 147, at 8-9 (discussing potential impact of

mediation on the increasing incidence of settlement of arbitrated cases prior to hearing or

to publication of an award); see generally Stipanowich, Reflections, supra note 1, at 381-

83 (reiterating these data and discussing them within the broader context of mediation’s

present and future role in international arbitration practice). 188 Another respondent articulated the perspective that “[m]ediation offers its own

opportunities to serve as a mediator. It does make cases go away, but that is a good thing:

there are plenty of cases. We have to do our best in each one.” Still another commenter

observed that “[m]ediation serves to focus the issues in dispute and to harden positions that

survive the attempt to mediate.” There were, however, also comments about the personal

negative repercussions of mediation’s proliferation, such as a respondent’s observation that

“[mediation] often results in [a]rbitration cases settling after hearing dates have been

reserved on the calendar for[ ]months,” and that mediation “causes havoc to scheduling and

causes lost income for the matters turned down because of the case that settles late.” 189 For example, respondents commented how “[c]lients are much more involved[ ](a

very good thing)” (parenthetical from original text) and that “[c]onsumers of services . . .

are more aware of the issues that protract arbitrations and the increases in cost and seek to

work around or avoid them.” One respondent perceived a “greater willingness among

parties to structure procedures or to settle, based on anticipated cost[s] (including their

own attorneys’ fees and expenses) and perceived risk” (parenthetical from original text). 190 Several respondents mentioned recent initiatives aimed toward empowering and

training arbitrators to actively manage their cases in disciplined manners that aim to limit

the time and expense required to complete arbitration proceedings. See Mitchell

Marinello & Robert Mallin, Muscular Arbitration and Arbitrators Self-Management Can

Make Arbitration Faster and More Economical, 67 DISP. RES. J. 69, 69 (2013). One

commenter noted that “[c]hanges in arbitration practice, such as the Muscular Arbitrator,

have made arbitration more efficient and enabled me, I think, to do a better job,” while

another commented succinctly that “muscular arbitration simplifies cases.” 191 For example, one respondent commented that “[c]ost-driven business approaches

reinforce my efforts to streamline procedures.” A different participant noted, however,

that “[m]any businesses are so wary of costs as to shun arbitration,” and another replied

that the same pressures motivating businesses to save time and money may also be


In a related vein, eight individuals (8.1%) pointed to an increase in the number

of counsel who “want to ‘litigate’ in arbitration” as a primary cause for arbitration

inefficiency,192 while another seven (7.1%) expressed concern that a growing

number of counsel or business users are reluctant to use arbitration because they

“have either experienced first-hand or heard about . . . arbitrations where the result

and costs are basically equal to or even more than litigation,” with a primary

difference being that most arbitrations are “without the right of appeal offered by

litigation.”193

XI. PERCEIVED DIFFERENCES BETWEEN U.S. AND

INTERNATIONAL ARBITRATION PRACTICE

Although the CCA/Straus Institute Survey was primarily focused on

arbitration of domestic disputes in the United States, a high percentage of the

experienced arbitrators claim experience as arbitrators in international disputes.194

This latter group was given the opportunity to report on any significant differences

between their experiences in, or perspectives regarding, domestic and

international practice.195

preventing them from compromising throughout their disputes. “[B]usiness practices and

attitudes have become more aggressive in more competitive environments, resulting in

more disputes and less willingness to compromise them except under pressure from

transactional costs.” 192 Some respondents’ comments suggest occasional extreme efforts of counsel in this

regard. “Even after repeated warnings, some counsel refuse to be dissuaded from

continuing to litigate.” Correspondingly, one respondent noted that the “reluctance of

panel arbitrators to push back when experienced courtroom litigators insist on handling

cases in arbitration as if they were in court, particularly when advocates on both sides of a

case agree on a litigation approach” is at least partially to blame for inefficiencies caused

by counsel treating arbitration as they would trial, while another disagreed and stated that

such efforts by arbitrators to “reign in” counsel have “compromised somewhat deference

to party autonomy.” A few respondents viewed counsels’ efforts of treating arbitration as

trial to be indicative of inexperience rather than overt attempts to manipulate the process.

“Counsel’s growing understanding of the differences between court litigation and

arbitration has resulted in more efficiency; when counsel do not understand, however,

proceedings can be inefficient and more costly for all.” 193 One respondent took these points further, noting, “I do sense a change in attitude

toward commercial arbitration and a fear among business people that arbitration has moved

closer to litigation. There is also trepidation due to the lack of appeal and uncertainty as to

the arbitrators’ commi[t]ment to follow the applicable law.” Another Survey participant

commented that “[s]ome parties are very adverse to tribunal administrators such as the AAA

which they perceive as archaic, inefficient and expensive. In my opinion, these beliefs have

tended in recent years to steer parties away from arbitration.” 194 See supra Part III.A. 195 The 107 respondents who claimed to have served as an arbitrator of an

international dispute were asked the optional question, “If your answers to any of the

questions in Section I would have been significantly different had those questions

pertained to international arbitrations, please explain how they would have been different.”


Forty-four respondents196 took the opportunity to comment on this question.

Sixteen individuals (36.4% of commenting respondents) indicated that they

perceived no “significant difference” between their domestic and international

arbitration practice as pertaining to the Survey questions.

Of those 28 respondents who did perceive differences, comments were

overwhelmingly directed toward procedural contrasts affecting cost and time in

arbitration. Seven respondents (25.0%) indicated that their international cases

entail relatively abbreviated discovery (information exchange) processes. Several

respondents supported the notion that the involvement of foreign parties makes it

easier to limit discovery.197 Comments also touched on the role in international

cases of the IBA Rules of the Taking of Evidence in International Commercial

Arbitrations198 and other guidelines.199 Four individuals (14.3%) commented that,

in particular, their international cases use witness statements in lieu of direct

testimony, and that doing so saves parties time and money. Other participants

made more general comments, including the observation that international cases

prompt them to have “concern about different ethical obligations and expectations

re[garding] discovery and other issues.”

196 All responses were encoded into the categories discussed here so long as the

respondent’s intent was both unambiguous and clearly fell within that category’s stated

description. Seventeen responses (38.6% of the response sample) could not be categorized

but were still included in the stated sample size for purposes of accurately statistically

representing the response pool. 197 “Particularly . . . when there are foreign parties involved, it’s easier to lean on

U[.]S[.] parties to cut down on discovery”; “when both lawyers are from the U.S. it ends

up being like a domestic arbitration.” See Stephen N. Subrin, Discovery in Global

Perspective: Are We Nuts?, 52 DEPAUL L. REV. 299, 302 (2002) (“Lawyers in civil law

countries do not conduct pretrial depositions. There is also no pretrial document

production conducted by the lawyers.”); Giacomo Rojas Elgueta, Understanding

Discovery in International Commercial Arbitration through Behavioral Law and

Economics: A Journey Inside the Minds of Parties and Arbitrators, 16 HARV.

NEGOTIATION L. REV. 165, 173 (2011) (“limiting the scope of discovery in international

arbitration has been identified as a fundamental way of treating parties from different legal

traditions equally”). 198 IBA RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION,

adopted by a resolution of the IBA Council May 29, 2010. One respondent stated, “I try

to persuade parties to adopt the IBA Rules for the Taking of Evidence in International

Commercial Arbitrations, which eliminate depositions and limit the production of

document[s], and encourage the use of witness statements. Once the IBA Rules apply, the

process becomes much more streamlined.” 199 For instance, one respondent commented, “I'm much tougher regarding discovery

given the ICDR Guidelines.” See ICDR GUIDELINES FOR ARBITRATORS CONCERNING

EXCHANGES OF INFORMATION (May 31, 2008).


XII. LOOKING FORWARD

Although the CCA/Straus Institute Survey was primarily focused on

commercial arbitrators’ past experiences, current practices and perceptions of

practice, subjects were also asked to forecast the relative usage of various dispute

resolution methodologies during the coming decade. Table 10 summarizes the

responses.

Table 10. Estimated Usage of ADR Processes in Coming Decade

Q: If you had to guess, during the coming decade will the

use of each of the following increase, decrease, or stay the same?

Increase Stay the same Decrease Not sure

Fast track (“streamlined”) arbitration 64.8%

(83)

25.8%

(33)

0.8%

(1)

8.6%

(11)

Appellate arbitration processes 45.3%

(58)

19.5%

(25)

10.2%

(13)

25.0%

(32)

Med-Arb (with the same neutral playing

both roles)

18.0%

(23)

31.3%

(40)

23.4%

(30)

27.3%

(35)

Final offer (“baseball”) arbitration 13.3%

(17)

39.1%

(50)

10.2%

(13)

37.5%

(48)

Arbitrations before a sole arbitrator 56.3%

(72)

33.6%

(43)

3.9%

(5)

6.3%

(8)

Multi-step processes 52.3%

(67)

23.4%

(30)

1.6%

(2)

22.7%

(29)

Customized dispute resolution processes

(in general)

67.2%

(86)

18.8%

(24)

3.1%

(4)

10.9%

(14)

Administered arbitration 26.6%

(34)

46.9%

(60)

18.8%

(24)

7.8%

(10)

Non-administered arbitration 36.7%

(47)

36.7%

(47)

12.5%

(16)

14.1%

(18)

Online arbitration 50.8%

(65)

9.4%

(12)

3.1%

(4)

36.7%

(47)

Mediation 82.8%

(106)

13.3%

(17)

1.6%

(2)

2.3%

(3)

Non-binding arbitration 8.6%

(11)

29.7%

(38)

26.6%

(34)

35.2%

(35)

Early neutral evaluation 32.8%

(42)

35.9%

(46)

4.7%

(6)

26.6%

(34)

Early case assessment 39.1%

(50)

26.6%

(34)

4.7%

(6)

29.7%

(38)

B2B (business-to-business) arbitration 43.8%

(56)

32.0%

(41)

8.6%

(11)

15.6%

(20)


Consumer arbitration 30.5%

(39)

16.4%

(21)

34.4%

(44)

18.8%

(24)

Employment arbitration 26.6%

(34)

39.8%

(51)

9.4%

(12)

24.2%

(31)

A large majority of the group (106 respondents, or 82.8% of the group)

expected mediation to see increasing use. Majorities also anticipated growth in

the use of customized dispute resolution processes (67.2%); fast track

(“streamlined”) arbitration (64.8%); single-arbitrator processes (56.3%); multi-

step processes (52.3%) and online arbitration (50.8%). Large minorities expected

more use of appellate arbitration processes (45.3%); B2B arbitration (43.8%);

early case assessment (39.1%); and non-administered arbitration (36.7%).

On the other hand, there were a few situations in which a relatively sizeable

number of respondents forecast decreasing use. These included consumer

arbitration (34.4% predicted a decrease, as compared to 30.5% who predicted an

increase); non-binding arbitration (26.6% predicted a decrease, as compared to

8.6% who predicted an increase); and med-arb (with the same neutral playing both

roles) (23.4% predicted a decrease, as compared to 18.0% who predicted an

increase).

XIII. CONCLUSION: KEY INSIGHTS FROM THE CCA/STRAUS

INSTITUTE SURVEY ON ARBITRATION PRACTICE

The CCA/Straus Institute for Dispute Resolution Survey on Arbitration

Practice may be the broadest and deepest canvas of experienced commercial

arbitrators ever undertaken. In any case, it is the most ambitious published study.

The Survey affords us extensive data on arbitrators’ reported experiences,

practices and perspectives with respect to many different aspects of the largely

hidden realm of arbitration and dispute resolution.

While we are unable to say whether these data reflect the backgrounds,

experiences, behaviors and views of arbitrators generally, or even the broad run of

arbitrators in the U.S., they do give us many insights regarding a segment of the

most experienced and well-known commercial arbitrators. Among the most

salient of these insights are the following:

1. The ranks of prominent and experienced arbitrators are dominated by

older men, although women are very gradually overcoming traditional

entry barriers and establishing successful careers as arbitrators and dispute

resolution professionals alongside their male colleagues.200

2. Prominent, experienced commercial arbitrators are overwhelmingly

lawyers, mainly veterans of litigation – a reality that undoubtedly reflects

(and may in some ways reinforce) the “legalized” or “judicialized” nature

200 See supra Part II. A & B.


of current commercial arbitration.201 The use of multidisciplinary

tribunals appears to have waned.202

3. Many retiring lawyers envision appointments as an arbitrator and dispute

resolution professional as a way of making money and deriving other

benefits through an extended active retirement, putting them in

competition with full-time practitioners. A majority of both groups do not

have as many arbitral appointments as they would like.203

4. International cases are becoming a greater portion of the caseload of

experienced U.S. arbitrators, and expectations are for this trend to

continue.204

5. Prominent, experienced commercial arbitrators have extensive experience

as sole arbitrators; a solid minority have acted as sole arbitrators in cases

involving very large sums.205 The group also has extensive experience

with tripartite arbitration,206 streamlined or fast-track cases,207 and ad hoc

arbitration or arbitration under non-administered rules.208 A smaller

number claim experience in other kinds of proceedings (such as final-

offer arbitration,209 appellate arbitration,210 and emergency arbitration211).

6. Although most experienced arbitrators believe tripartite panels – in which

wing arbitrators are appointed unilaterally by a party – generally work

well, there are also perceptions that wing arbitrators sometimes are

predisposed toward the party that appointed them and may even lean

toward “their” parties’ position in rendering a final award.212

7. Experienced arbitrators appear to be embracing a proactive approach to

management of arbitration proceedings and employing a wide array of

techniques to tailor arbitration processes to the circumstances and the

needs of parties, including through handling of pre-hearing dispositive

motions and discovery, and managing hearings.213

8. In deliberating on and rendering awards, experienced arbitrators appear to

pay great attention to applicable law. However, a minority sometimes

201 See supra Part II.C. 202 Id. 203 See supra Part II.F. 204 See supra Part III.A. 205 See supra Part III.C. 206 See supra Part III.D. 207 See supra Part III.G. 208 See supra Part III.F. 209 See supra Part III.H. 210 See supra Part III.E. 211 See supra Part III.J. 212 See supra note 206. 213 See supra Part IV.


feel free to ignore applicable law in favor of their own sense of equity and

fairness.214

9. Experienced arbitrators report higher rates of settlement of arbitrated

cases in recent years. Estimated rates of settlement vary greatly, as do

perspectives on the arbitral role in “teeing up” a case for settlement.215

10. Experienced arbitrators are branching out to embrace other roles in the

resolution of disputes, including through service as non-binding or

advisory arbitrators, early neutral evaluators, and participants in early case

assessment. Many also act as mediators.216

11. In evaluating the impact of major trends on arbitration, experienced

arbitrators focused on concerns associated with the cost, length and

efficiency of arbitration and dispute resolution.217

12. In the coming decade, experienced arbitrators expect increased use of,

among other approaches: mediation, customized dispute resolution,

streamlined or “fast track” arbitration, arbitrations before a sole arbitrator,

multi-step processes, and online arbitration.218

Although we may still perceive the realities of commercial arbitration “as

through a glass, darkly,” the CCA/Straus Institute Survey is an important step

toward lifting the veil and illuminating this continuously evolving sphere of

activity.

214 See supra Part VI. 215 See supra Part VII. 216 See supra Part VIII. 217 See supra Part X. 218 See supra Part XII.

Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators

Documents

tripartite arbitration

appellate arbitration

emergency arbitration

scope of arbitration

final offer arbitration

administered arbitration

fast track arbitration

sole arbitrator