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Key Piece: The selection of the neutral--may be the most important part of the ADR process

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Key Piece: The selection of the neutral--may be the most important part of the ADR process

Source: Los Angeles Daily Journal (Vol. 115, No. 144)
Date: July 26, 2002
The selection of the neutral who will hear the proceeding and render an award may be the single most important part of the ADR process.

For those attorneys and clients who agree to participate in the arbitration process to settle a dispute rather than proceeding through the judicial process, the selection of the neutral who will hear the proceeding and render an award may be the single most important part of the ADR process.

In judicial proceedings, counsel and parties are limited in determining which judge will preside over their case. They can file a peremptory challenge to a judge assigned to hear their case, and then they may file a challenge for cause. But experience shows that challenges for cause are very difficult to prove.

In the arbitration process, an attorney usually has more flexibility and choice as to who will hear their case. Therefore, it is important to do a thorough job in researching the experience and background of the neutral who will hear your case.

You start with the institutional or private ADR provider as designated by either your pre-dispute arbitration agreement or post-dispute arbitration stipulation.

With institutional ADR providers, you usually have the resources of a case manager, who should be able to suggest the names of several neutrals who have experience handling your type of case.

My recommendation to attorneys is to be as candid as possible with the case managers about what type of neutral they are seeking to arbitrate their dispute.

For example, tell the case manager if this case needs an experienced neutral who may need to take control over the process, set firm deadlines, address discovery disputes promptly and also be available on short notice to handle issues that may arise.

An attorney should ask for resumes of any prospective neutral so that the attorney can be reassured that the neutral has had experience in the type of dispute at issue. Review the resume carefully, and, if it lists attorneys who have appeared before the neutral, call them and ask them their opinion of the neutral's work as an arbitrator.

In selecting a neutral, an attorney should find out whether the neutral makes an interim award or only a final award at the end of the arbitration process.

This detail is very important because an interim award allows the neutral to retain jurisdiction so that he or she can hear further arguments from counsel before modifying the interim award if necessary and issuing the final award/findings.

Attorneys should select a neutral who makes interim awards/findings because it allows them to make sure that the neutral has considered only relevant material and admissible facts and has applied the applicable law to the facts of the case.

In selecting a neutral, attorneys should determine whether a neutral prefers hearing oral arguments at the conclusion of the evidentiary portion of the arbitration or prefers written arguments.

My experience in the arbitration process is that, if the case is complex, the attorneys prefer to file written arguments so that they can be assured that they have argued all the strong points of their case and highlighted the weakness in the opposition's case.

Another factor that attorneys should consider in selecting a neutral to hear their case is the process skills of the prospective neutral.

While the codes and the pre-dispute agreement or post-dispute stipulation and the institutional ADR provider's rules generally govern the arbitration process, attorneys for the parties can stipulate to a process that varies from the rules, and, therefore, you may want a neutral who is flexible in handling variations of the standard process.

One of the great advantages of arbitration over the judicial process is the ability to tailor the process to fit your own individual needs and requirements. You need a neutral who can handle the variations and who is, in fact, a contributing factor in shaping the process to accommodate all attorneys and parties.

The arbitration process is no different from the judicial process when it comes to selecting a neutral who has the proper demeanor for your case. In judicial proceedings you may have faced bench officers who had a reputation for being "tough" on attorneys, and you accepted being in the courtroom because you felt you got a fair hearing.

In arbitration proceedings, attorneys can select a neutral who will give them a fair hearing and at the same time treat them and their clients with the deference and respect to which litigants and attorneys are entitled. Selecting a neutral with the demeanor you want may be one of the most important services you can provide to your client.

Another factor to consider in selecting a neutral is to determine in advance whether the neutral welcomes attorneys who will present proposed findings and awards at the conclusion of the arbitration.

Presenting proposed findings allows the attorney to make sure that the neutral has the attorney's full thoughts about the specific relief that is being sought in arbitration and whether or not the claimant met his burden.

An attorney also should consider whether the neutral has the reputation for arbitrating in a timely and efficient manner. Remember that it's your client's money and your own time that is being spent.

An attorney also should select a neutral who will give parties a definite schedule on continuous days to finish the evidentiary part of the process and a definitive time for issuing the findings or award, either an interim or final. Everyone wants finality to the arbitration process.

As the attorney in an arbitration proceeding, you have no control over the facts of the case, but you do have the ability to exercise sound judgment in selecting the arbitrator who will hear your client's case. In this role you may be rendering your client your best service.

Hon. David D. Perez (Ret.)
is a resolution expert for JAMS in Southern California. He has extensive experience as a mediator, arbitrator and discovery referee in many areas, including complex business, commercial and employment cases.

© 2002 Daily Journal Corporation. Reprinted with Permission