2006/Vol. 5 No.1 - Hamline Law - Hamline University

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32 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 notifying the arbitrator he/she has been chosen. The AAA Arbitration Rules for Resolving Commercial Financial Disputes state: Notice of the appointment of any arbitrator, whether appointed unilaterally by a party, mutually by the parties or by the AAA, shall be sent to the arbitrator by the AAA, together with a copy of these rules, and the signed acceptance of the arbitrator shall be filed with the AAA prior to the opening of the first hearing. 137 It is usual for one or both of the attorneys to send confirming letters to the arbitrator informing the arbitrator that he/she has been chosen as the arbitrator in the matter. Under the Federal Mediation and Conciliation Service rules, the parties are responsible for notifying the Office of Arbitration Services (OAS) “of their selection of an arbitrator or of the decision not to proceed with arbitration. Upon notification of the selection of an arbitrator, the OAS will make a formal appointment of the arbitrator.” 138 The party seeking to begin the arbitration process is required to notify the respondent. Fundamental fairness requires that the respondent be notified of the claims being brought against them. 139 If the parties utilize an agency, notice of the claim is sent by the agency to the respondent. 140 The respondent has an opportunity to respond and/or counterclaim. 141 E. Scheduling Under the FMCS rules, “[t]he arbitrator, upon notification of appointment, is expected to communicate with the parties within [fourteen] days to arrange for preliminary matters, such as the date and place of hearing.” 142 The arbitrator will provide potential hearing dates for which the arbitrator is available. The usual way for the arbitrator to contact the advocates for the claimant and the respondent is to send a letter jointly addressed to both informing them of a series of dates the arbitrator is available. The arbitrator will ask the parties to contact each 137. American Arbitration Association, supra note 89. 138. Federal Mediation and Conciliation Service, supra note 132, § 1404.12. 139. Lewis Maltby, Paradise Lost—How the Gilmer Court Lost the Opportunity for Alternative Dispute Resolution to Improve Civil Rights, 12 N.Y.L. SCH. J. HUM. RTS. 1, 18 (1994). 140. AAA Rules, supra note 37. 141. See id. 142. Federal Mediation and Conciliation Service, supra note 132, § 1404.12.
<strong>2006</strong>] ARBITRATION: THE BASICS 33 other and choose a mutually convenient date. A typical letter from the arbitrator is jointly addressed to the claimant’s attorney and the respondent’s attorney saying: “Below are dates the arbitrator is available for the arbitration hearing. Kindly contact each other immediately, choose a mutually convenient date, time, and place. Let the arbitrator know right away. Please know the arbitrator has these dates out in other matters, so the sooner you choose the better.” Because the typical arbitrator is busy, it is important for the advocates to contact the arbitrator as soon as possible with a mutually convenient date for the arbitration, so the arbitrator can block the time on his or her calendar. If the parties are having difficulty arranging a time, the arbitrator will have a conference call with both advocates. At the conference call, the parties and the arbitrator coordinate their calendars and choose a mutually convenient date for the arbitration. The sooner the date, the more likely the arbitration process is able to fulfill the “quick” objective of arbitration. Some agencies leave it to the arbitrator to arrange a mutually convenient time. Others agencies arrange for the arbitration date by talking with the advocates for the claimant, the respondent, and the arbitrator. 143 Once a time is blocked on the arbitrator’s calendar the parties are responsible for a cancellation fee if the matter is settled prior to the hearing. F. Arbitrator Disclosure Requirements Arbitrators as neutrals must disclose all actual and potential conflicts of interest reasonably known. 144 After disclosure, the neutral 143. See AAA Rules, supra note 37, R-22 (“The arbitrator shall set the date, time, and place for each hearing. The parties shall respond to requests for hearing dates in a timely manner, be cooperative in scheduling the earliest practicable date, and adhere to the established hearing schedule.”); ICC Rules, art. 21 (stating that “[w]hen a hearing is to be held, the Arbitral Tribunal, giving reasonable notice, shall summon the parties to appear before it on the day and at the place fixed by it”). 144. See AAA Rules, supra note 37, R-16. Any person appointed or to be appointed as an arbitrator shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence. Id. CANON II. AN ARBITRATOR SHOULD DISCLOSE ANY INTEREST OR RELATIONSHIP LIKELY TO AFFECT IMPARTIALITY OR WHICH MIGHT CREATE AN APPEARANCE OF PARTIALITY. A. Persons who are requested to serve as arbitrators should, before accepting, disclose: (1) any known direct or indirect financial or personal interest in the
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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