As arbitration continues to rise as an alternative to litigation, it requires skilled counsel. Whether the dispute involves family law or business matters, it begins with an important decision: choosing an arbitrator.
Arbitration allows parties to choose their neutral decision-maker. This can be a distinct advantage. However, it also raises several issues that need to be explored.
Impartial Decision-Making
Arbitration is a process where you and the person you are in dispute with put your case to an independent arbitrator. The arbitrator listens to both sides of the story, looks at all the evidence, and decides the outcome. The decision is binding on both parties.
There is a widely held belief that arbitrators must be impartial like judges that judges are. This is partly because both courts and arbitrations are considered part of the judicial system, so the analogy appeals to common sense.
However, there are fundamental differences between the adjudicatory function performed by judges and that of arbitrators, which justify a more differentiated approach to independence and impartiality. Independence is generally understood to result from certain institutional conditions or safeguards that ensure an adjudicator is free of external pressures in their decision-making process. These include:
Similarly, the notion of impartiality is generally understood to be based on having sufficient institutional conditions in place to guarantee that an adjudicator makes decisions without influence by external factors. In the context of arbitration, this includes having:
Flexibility of Process and Procedure
Arbitration is an alternative method of dispute resolution that allows individuals and businesses to resolve disputes without the expense and uncertainty of litigation. Many companies include arbitration clauses in their commercial contracts to quickly fix it through FINRA arbitration rather than going to court if they disagree. Arbitrators conduct a hearing in which all parties present evidence through documents, exhibits, and testimony. The hearing is usually held in offices or other meeting rooms. Arbitrators may establish their procedures or follow the guidelines established by an administrating organization. In some cases, there is a single arbitrator; in others, there is a panel of three or more.
Arbitrators must be able to tailor their approach to the particular case in question and the circumstances of each party. The arbitration process can be less formal than a traditional court case, and the presiding arbitrator can streamline the proceedings. Nonetheless, all elements typical of a court trial will typically be present, such as opening statements and arguments, evidence and testimony, deliberations, and a decision called an award.