The arbitrator is similar in many ways to a judge in a case, although the scope of authority of the arbitrator is much less encompassing. In general the arbitrator will convene the parties, manage the arbitration hearing, participate in the questioning of the parties and, after all information is collected, write a decision or an award on the information provided. As a form of Alternative Dispute Resolution or ADR used in everything from labor relations through to consumer complaint resolution the arbitrator's role and function always remains the same although the specific details of the style and format may vary slightly.
The arbitrator will be selected by the parties and there must be agreement on the individual or the individuals that will sit on the arbitration panel. Typically in court ordered hearings the arbitrators are provided on a list and the parties and their representatives choose from one or more of the names on that short list. In voluntary or non court ordered hearings a wider scope of arbitrators may be considered. The arbitrator, unlike a judge, usually is considered for a specific hearing because of his or her subject matter expertise. Some arbitrators may have a law background while others may be specifically trained as arbitrators without being lawyers, judges or other legal experts. The requirement for legal background is often a function of the type of hearing.
Usually in labor, contract or commercial types of arbitrated hearings a panel of arbitrators is used as opposed to just a single individual. This can provide a greater range of expertise to sit on the panel. The arbitrators on the panel are bound by the same ethical and professional guidelines as a single arbitrator and, as part of those standards; they cannot have a conflict of interest with any party to the case. The arbitrator must not have any vested interest in the outcome of the arbitration and should not have a business, professional or personal relationship with the parties to the hearing. Any prior working relationship with representatives should also be disclosed immediately and careful consideration given to the perception of bias or favoritism towards any party to the hearing. This is usually the key point in overturning an award and can cause serious professional ramifications for the arbitrator if disclosure is not provided prior to the hearing.
The arbitrator will convene and set the schedule. Most single issue hearings are relatively short in duration, but during the hearing the arbitrator acts as the meeting facilitator and coordinator. The arbitrator sets all the rules of procedures, admission of evidence, witnesses, agenda and manages the communication and emotional levels in the room. Unlike a mediation the arbitrator does not attempt to get the parties to reach common ground and settlement; he or she simply gathers information used to reach an arbitrated decision or award.
The arbitrator can ask questions directly to the parties during the appropriate time. This is typically after the opening statements and during the general questioning and information exchange. Some arbitrators may prefer a more formal structured question and answer session while others may be less formal and structured. The arbitrator will often take notes or there may be a recording made by the arbitrator or a court reporter during the session that is used strictly by the arbitrator in writing the decision. In most hearings there are no options for any other types of recordings to be produced, but this can vary based on the agreement of the party or the standards for arbitrated hearings set forth by the state or country in which the hearing occurs.
After the hearing the arbitrator will have a set number of days to produce the award, sometimes referred to as the decision. This can be either binding or non-binding depending on the agreed upon terms prior to the commencement of the hearing. In the event of an agreement for a binding arbitration hearing the arbitrator's decision is final and cannot be appealed through the court system expect in very specific cases.
No comments:
Post a Comment