To Ask or Not to Ask

Arbitrators play a crucial role in clarifying facts and legal issues during arbitration. In “To Ask or Not to Ask,” Lisa D. Love, Esq., FCIArb of JAMS explores when and how arbitrators should pose questions without compromising their impartiality. The piece provides a comprehensive guide on arbitrator inquiries, ethical constraints, and the fine balance between obtaining clarity and maintaining neutrality.

Key Ethical Guidelines for Arbitrator Neutrality

• Arbitrators must adhere to strict codes of impartiality under bar association rules and arbitral institutions (e.g., ABA, JAMS, New York State).

• They may seek clarification but must avoid the appearance of bias, advocacy, or offering legal advice.

Six Categories of Arbitrator Inquiries

1. Clarification or Confirmation of Facts – Understanding background, timelines, and party interactions.

2. Clarification of Legal Principles – Questions on burden of proof, statutory prerequisites, and applicable law.

3. Arbitration Agreement Provisions Not Raised – Enforcing terms such as minimum award clauses.

4. Principal Contract Provisions Not Raised – Interpreting relevant but unaddressed contractual terms.

5. Damage Calculations and Contract Compliance – Verifying damages align with contractual frameworks.

6. Mock Arbitration Questions – In mock settings, evaluators have wider latitude to critique and inquire without neutrality concerns.

Four Core Principles for Effective and Ethical Arbitrator Inquiries

1. Wait for Party Presentations – Inquiries should generally follow both parties' submissions unless initial clarity is vital.

2. Avoid Raising New Claims – Arbitrators should not introduce issues not raised by the parties.

3. Steer Clear of Unraised Affirmative Defenses – Questions should not suggest new defenses like statute of limitations or estoppel.

4. Maintain Impartial Tone – All inquiries must reflect fairness and neutrality.
   
   

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