Serving as an Arbitrator

1. Nominations
2. Appointments
3. Status (Pre-Hearing) Conferences
4. Deposits
5. Invoices
6. Settlements and Withdrawals
7. Hearings and Awards
8. Absent Respondents

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Nominations 

Selection 

AHLA nominates candidates whose background and experience most closely match the parties’ preferences.  Generally, their primary concerns are expertise in the areas of law at issue and proximity to where the hearing will take place.   

Notice 

AHLA will notify you by email when you have been nominated.  The message will include the claim number so you track your nominations.  Parties have 10 business days to review candidates and submit rankings.  However, it will often take far longer than that to hear back from us.  Claims frequently are settled, withdrawn or continued during the ranking stage because parties know that once an arbitrator is appointed expenses will mount.  And counsel may fail to notify us of a settlement since they no longer need our services. 

Party Contact 

One or both parties may contact you to obtain further information.  AHLA Rule 3.2(d) states:

Parties may contact candidates directly to inquire about their suitability and their availability for appointment. Such contacts must be in writing, and a copy of any such communication must be provided to the other party(ies). When corresponding with candidates, parties may disclose the general nature of the question in dispute in the case, but may not discuss its merits.  

Please let us know if a party fails to comply with this rule. 

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Appointments 

Forms to Complete 

If the parties select you as an arbitrator, you will receive acceptance and disclosure forms via email through Adobe Sign.  You will also be asked to provide a W-9 if AHLA does not have a current one on file for you or your firm. 

If you need more than five business days to complete the forms, please request an extension.  They are routinely granted.  It is far more important to complete the Disclosure Checklist thoroughly than quickly.

Next Steps 

Once you complete the required forms, please schedule a Status (Pre-Hearing) Conference promptly.  AHLA's arbitration rules do not require the parties to confirm your appointment.  Asking them to do so may cause confusion and unnecessary delay.    

If you believe one or more parties may be concerned about a relationship you have disclosed, please consider posting a message on the case site along the following lines:

My disclosure checklist notes [describe relationship].  I am confident that I can serve fairly and impartially but will withdraw if anyone requests that I do so within one week of receiving this message.  

If parties know you will withdraw upon request, they have nothing to fear by objecting.  

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Status (Pre-Hearing) Conferences 

Timing 

Arbitration Rule 5.4 requires an arbitrator to schedule a status conference with the parties “as quickly as possible” once appointed.  Please do not wait for the parties to confirm your appointment or for staff to contact you.   

Available Resources  

Scheduling 

You may propose dates to the parties or ask the Case Manager to propose dates on your behalf.  Once a date has been set, please add it to the Events list on the case site.  This will ensure you and the parties receive notice and reminders.

Logistics 

Status Conferences are almost always conducted remotely.  The Case Manager can provide you with a Zoom account exclusively for use with your claim.  A Zoom session without cameras on is functionally the same as a conference call, except easier to log into.  With the parties’ consent, you can record the conference.   

Practice Tips 

• Prior to the Status Conference: Ask the representatives to confer and try to reach agreement on a proposed scheduling order (Scheduling Order Sample 1 | Scheduling Order Sample 2).   If the claim involves protected health information, ask the parties if they can agree on a Protective Order (Protective Order Sample).  If the claim involves reimbursement for health care expenses, ask the parties to complete the Reimbursement Spreadsheet.
• During the Status Conference: Ask the representatives how deposits will be paid. (They frequently do not raise this uncomfortable subject with their clients.  You do not need to discuss specific dollar amounts, just the importance of ensuring clients are prepared to pay when asked.) 
• After the Status Conference: Circulate a draft order (Draft Order Sample) for comment before finalizing it and ask the Case Manager for a deposit.   After signing the Scheduling Order please upload it to the case site.   Please notify the Case Manager if the respondent has filed or intends to file a counter-claim.    

Deposits 

Initial Deposit 

AHLA invoices the parties for initial deposits totaling $3200 (more in panel cases) while they are ranking candidates so the arbitrator, once appointed, can proceed without delay.  Please check under Financials on the case site to determine whether the deposits have arrived. 

Additional Deposits 

Please provide this worksheet (Deposit Worksheet PDF | Deposit Worksheet Word Doc) to the Case Manager.  She will work with you on creating a deposit schedule and request deposits on your behalf.  

If a party fails to pay within 30 days it will incur a late fee.  The Case Management System will notify you when AHLA has received and recorded a deposit.  

Practice Tips 

Single Arbitrator 

How much of a deposit to ask for at any given time depends on the size and complexity of the claim.   The arbitrator of a small and straightforward matter may be able to estimate at the outset how much work will be required and request a single deposit.  In contrast, the fees required to resolve a complex case may be impossible to predict early on. Some high stakes cases settle right after an arbitrator or panel is chosen; others require extensive pre-hearing proceedings, a lengthy hearing, and the drafting of a complex award.   The arbitrator should schedule a series of deposits and adjust the amounts and deadlines as needed.   

Since a case may settle or be withdrawn at any time, it is critical to have sufficient funds in escrow to pay accrued fees and expenses throughout the life of a claim. Settlement agreements rarely provide for payment of arbitration expenses, and attorneys are often reluctant to go back to their clients for more money once they have signed off on a deal.  Insist that the parties keep up with deposits even if--especially if--they are optimistic about reaching an agreement. AHLA returns unused deposits (less a small administrative fee). 

Panel Chair 

The chair must establish a budget and ensure panel members comply with it.  Cap the number of hours per panel member per task (including the chair) and schedule deposits based on this allotment.  Panel members may have very different views on how much time is appropriate to spend reviewing documents, conferring with each other, and drafting orders and awards.  The chair must reconcile these differences in advance; otherwise, panel members will invoice for widely different amounts and the total is likely to exceed the amount on deposit. 

Adjust the allotments and corresponding deposits as needed as the case unfolds, ensuring at all times that AHLA has sufficient funds on deposit to pay projected fees and costs.  

If the deposits are insufficient to pay invoices, seek consensus about how to allocate the funds. If panel members cannot agree on the allocation, AHLA will implement the majority opinion if there is one. If the panel members are split three ways, AHLA will retain the funds until a majority or consensus emerges. 

Since panel members set their own hourly rates, they may receive markedly different compensation for the same work.  The chair is not responsible for addressing this inequity.  Hours should be allocated to provide high quality decision-making for a reasonable cost.      

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Invoices 

Submitting Invoices 

Please send your invoice in PDF format to: [email protected]

• Include the four-digit claim number 
• Provide a W-9 if AHLA does not have a current one on file 

Clearly mark final invoices as "Final" so we know it is okay to return unused funds, and please submit final invoices within 15 days after your work is completed so AHLA can refund excess funds in escrow promptly.

Tracking Invoices 

Click on the Financials button the case site.  “Approved” means sufficient funds on are deposit to cover an invoice. You should receive payment within thirty days from approval.  “Received” means AHLA has not yet received sufficient funds to pay an invoice.   

Please alert your billing department to AHLA’s 18% administrative fee so it is not expecting full payment of the amount billed.   

Receiving Payment 

Neutrals are paid through direct deposit to a designated bank account.  Please complete this form if AHLA does not already have your bank information.  

Sharing with Parties 

AHLA does not routinely share neutrals’ invoices with parties but provides them upon request. 

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Settlements and Withdrawals

If the parties notify you that a claim has been settled or withdrawn, please ensure the outcome appears in a message or document on the case site.  Either of these methods provides notice to all participants and authorizes AHLA to close out the claim.  

AHLA does not require an order of dismissal signed by the arbitrator, but the parties may need such an order for various reasons.

As soon as you have completed your work on a claim, please submit an invoice clearly marked as “final.” 

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Hearings and Awards 

Hearings

In-Person: AHLA staff will reserve appropriate space upon request. 

Virtual: Complete this form to have AHLA schedule a virtual hearing through Planet Depos. A trained technician will handle pre-hearing logistics and manage the hearing.  This level of support is highly recommended.  The Case Manager will let you know the projected cost based on the anticipated number of hours/days.     

Parties are often reluctant to pay the large deposits required to pre-fund a hearing because they are hoping the case will settle.  This is understandable but puts you at considerable risk of not being paid.  If they do not submit deposits sufficient to cover your anticipated time and expenses at least one week prior to the hearing, postpone and find new dates.   

Since claims often settle last minute, if the hearing is out of town consider purchasing a refundable plane ticket.    

Awards 

You are not required to have staff review a draft award, but the Director will review a draft upon request.  If AHLA does not have sufficient funds on deposit to pay for the time required to draft an award, please ask staff to request additional deposits and extend the deadline for filing the award.  If the award directs how funds held in escrow should be disbursed, please let AHLA staff know what is required of them.   

The default under the AHLA rules of procedure is a reasoned award, which is "something short of findings of fact and conclusions of law but more than a simple result."  Leeward Constr. Co., Ltd. v. Am. U. of Antigua–Coll. of Med., 826 F.3d 634, 640 (2d Cir. 2016).  "A reasoned award sets forth the basic reasoning of the arbitral panel on the central issue or issues raised before it. It need not delve into every argument made by the parties." Id.  In other words, a reasoned award satisfies the parties' interest in understanding how the arbitrator arrived at his or her conclusions but does not burden them with the costs associated with preparing detailed findings of fact or conclusions of law.  

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Absent Respondents 

Having signed an agreement to arbitrate, a person or organization cannot avoid responsibility by refusing to participate in arbitration.   

Service 

The arbitrator should direct the claimant to serve all key documents (e.g., Notice of Scheduling Conference, Scheduling Order, Award) in accordance with applicable state or federal law and file proof of service.  The court where an action to enforce the award will be filed must regard service as adequate.

Conferences and Hearings 

Rule 4.2 permits an arbitrator to speak ex parte with the claimant by telephone or in person if the respondent fails to appear after receiving notice.  

If a respondent fails to participate in the Scheduling (pre-hearing) Conference and is not expected to appear for the hearing, the arbitrator should consider cost-saving measures such as a bench hearing (documents only) or taking testimony from witnesses by telephone or video conference.   

Deposits  

In commercial cases, the claimant must deposit sufficient funds to cover the anticipated costs of pre-hearing proceedings, the hearing, and the drafting of an award.  See Commercial Rules 5.3(b) and 7.6(c).  Depending upon how the agreement to arbitrate is worded, in arriving at a fair award the arbitrator may compensate the claimant for shouldering the full burden of deposits and incurring added costs for service.

In employment and consumer cases, if the employer or health care provider fails to deposit funds, the arbitrator may issue default judgment.  See Employment Rule 5.3(c) and Consumer Rule 5.3(c).  If the employee or consumer is the responding party, default judgment is not available.   

Late Entrance 

A respondent may enter an appearance at any point up to the close of the hearing. However, the respondent is not entitled to have any determinations made prior to its appearance reversed or reconsidered unless the claimant failed to provide adequate notice.  For example, if the arbitrator issues a Scheduling Order before the respondent enters an appearance, the arbitrator need not amend the order because the respondent has a conflict on the hearing date.    

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