The International Institute for Conflict Prevention & Resolution (CPR) Presents The Right Balance: When Do Arbitrators Need to Be Proactive, When Should They Leave Things to the Parties?

Being a fair, neutral, and independent arbitrator requires a careful balance.

Arbitrations do need to be managed appropriately to achieve the speed and low-cost efficiency that are goals. This means giving parties guidance on your expectations before the prehearing conference, cutting time of parties who ask to take too much time for prehearing preparation or the hearing, asking if there really are any disputed facts when a submitted claim or defense seems is an obvious dispositive  legal question, telling parties what should be discussed in pre- and post-hearing briefs, and giving clear reasons when a reasoned award is required.

But going overboard can make an arbitrator appear to be partial or sometimes act in a partial way. So forcing unrequested briefing on the parties, imposing strict rules of evidence on the parties, requiring a Zoom hearing when parties want a live one, requiring international practices like hot-tubbing and direct testimony only in written statements in domestic arbitration, injecting a claim or defense that seems obvious to you, or doing detailed undisclosed independent research a party should have done can derail an arbitration and expose it to a vacatur challenge.

Two arbitrators with decades of experience, John McArthur and Gary Benton, will discuss how they draw this sometimes subtle, sometimes obvious line.