Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators

Thomas J. Stipanowich and Zachary P.
Ulrich
2014
Arbitration in Evolution: Current Practices and

Perspectives of Experienced Commercial Arbitrators
Legal Studies Research Paper Series

Paper Number 2014/30
Electronic copy available at: http://ssrn.com/abstract=2519196
ARBITRATION IN EVOLUTION: CURRENT PRACTICES AND

PERSPECTIVES OF EXPERIENCED COMMERCIAL ARBITRATORS
Thomas J. Stipanowich* and Zachary P. Ulrich**
TABLE OF CONTENTS
I.
INTRODUCTION ....................................................................................... 396
II. SURVEY GROUP PROFILE...................................................................... 401

A. Age ........................................................................................................ 401
B. Gender ................................................................................................... 402
C. Professional Backgrounds ..................................................................... 404
D. Length and Depth of Experience as Arbitrator ..................................... 405
E. Current Professional Status and Activity .............................................. 410
F. Motivations for Service as Arbitrator ................................................... 417
III. SCOPE OF ARBITRATION PRACTICE .................................................. 419
A. Practice as an Arbitrator in International Disputes ............................... 419
B. Areas of Arbitrator Practice .................................................................. 423
C. Experience as Sole Arbitrator ............................................................... 424
D. Tripartite Arbitration ............................................................................. 425
E. Appellate Arbitration ............................................................................ 428
F. Ad Hoc Arbitration and Non-Administered Arbitration Rules ............. 429
G. Streamlined or Fast Track Arbitration ............................................... 434
H. Baseball or Final Offer Arbitration.................................................... 436
I. Bracketed Awards.............................................................................. 437
J. Emergency Arbitration .......................................................................... 438
K. Multi-Disciplinary Panels ..................................................................... 439
IV. PRE-HEARING MANAGEMENT ............................................................. 444
A. Tailoring Arbitration Procedures .......................................................... 445
B. Dispositive Motions .............................................................................. 448
C. Management of Discovery .................................................................... 450
* William H. Webster Chair in Dispute Resolution and Professor of Law, Pepperdine
University School of Law; Academic Director, Straus Institute for Dispute Resolution.
Thanks to the College of Commercial Arbitrators and members of its Executive
Committee (Tyrone Holt, Edna Sussman and Eugene Farber) for their support in making
possible the College of Commercial Arbitrators Straus Institute for Dispute Resolution
Survey on Arbitration Practice (2013), including a related grant. Thanks also to Tiffani
Willis, Research Librarian, Pepperdine University School of Law and Hao Wu,
Pepperdine School of Law LL.M. in International Commercial Arbitration, 2014 for their
research efforts.
** Research Fellow, Straus Institute for Dispute Resolution, Pepperdine School of
Law. B.A., B.S. (2007) American University, Washington, D.C.; J.D., M.A. Clinical
Psychology, Master of Dispute Resolution (2013) Pepperdine University, Malibu, CA.
395
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V. HEARING MANAGEMENT ..................................................................... 452

VI. DELIBERATING AND RENDERING ARBITRATION AWARDS ........ 454
VII. ARBITRATION AND SETTLEMENT ..................................................... 456
A. Frequency of Settlement ....................................................................... 456
B. Concern with Informal Settlement ........................................................ 459
VIII. BRANCHING OUT: OTHER INTERVENTION ROLES ...................... 461
A. Non-Binding or Advisory Arbitration ................................................... 461
B. Early Neutral Evaluation, Case Assessment ......................................... 461
C. Mediation .............................................................................................. 462
D. Med-Arb ................................................................................................ 463
IX. PROVIDER ORGANIZATIONS ................................................................ 465
A. Current Efforts of Arbitration Service Providers .................................. 465
B. Areas for Further Improvement ............................................................ 467
X. TRENDS AFFECTING DOMESTIC (U.S.) ARBITRATION
PRACTICE .................................................................................................. 469
XI. PERCEIVED DIFFERENCES BETWEEN U.S. AND
INTERNATIONAL ARBITRATION PRACTICE..................................... 475
XII. LOOKING FORWARD ............................................................................. 477
XIII. CONCLUSION: KEY INSIGHTS FROM THE CCA/STRAUS
INSTITUTE SURVEY ON ARBITRATION PRACTICE ....................... 478
I. INTRODUCTION
Today, arbitration enjoys wide and increasing use as a method of resolving
international disputes between corporations, nation-states, and individuals.1 It
remains an important alternative to litigation of domestic business disputes in the
United States and other countries2 and is the primary method of adjudicating
international commercial disputes.3
1
See Thomas J. Stipanowich, Reflections on the State and Future of Commercial

Arbitration: Challenges, Opportunities, Proposals, infra in this issue of THE REVIEW, at
297, 298-301 [hereinafter Stipanowich, Reflections] (providing commentary on and
analysis of much of the data presented in this article); NIGEL BLACKABY ET AL., REDFERN
AND HUNTER ON INTERNATIONAL ARBITRATION 1 (5th ed. 2009) [hereinafter REDFERN &
HUNTER].
2
See, e.g., Thomas J. Stipanowich & Ryan Lamare, Living with ADR: Evolving
Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000
Corporations, 19 HARV. NEGOTIATION L. REV. 1, 44-51, 62-67 (2013) (discussing use of
arbitration by major corporations).
3
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 94 (2d ed. 2014);
REDFERN & HUNTER, supra note 1, at 1.
2014]
ARBITRATION IN EVOLUTION
397
Moreover, growing numbers are seeking to promote themselves as advocates

specializing in arbitration or as professional arbitrators. In the U.S., the
paradigm of the commercial arbitrator has evolved from an occasional volunteer
activity into a full-time or part-time occupation.4 The growth of professionalism
is also reflected in the establishment of organizations such as the College of
Commercial Arbitrators (CCA), founded in 2001, which is now comprised of
many of the most experienced arbitrators in the United States.
Similar developments are being observed worldwide. In a recent address, the
Chief Justice of Singapore noted the explosive growth in the number of new
entrants to the global arbitration community, many from diverse legal traditions.5
This rapidly expanding community is feeding the development of, and being
fed by, a bewildering array of professional conferences and symposia, new
academic programs offering opportunities for in-depth study,6 and burgeoning
international moots.7
Through listservs8 and blogs,9 growing thousands
4
See Stipanowich, Reflections, supra note 1, at 374-76. See Linda J. Demaine &
Deborah R. Hensler, Volunteering to Arbitrate Through Predispute Arbitration Clauses:
The Average Consumers Experience, 67 LAW & CONTEMP. PROBS. 55, 56 (2004).
5
Sundaresh Menon, Some Cautionary Notes for an Age of Opportunity, Keynote
Address at the Chartered Institute of Arbitrators International Arbitration Conference,
Penang, Aug. 22, 2013, at 3. Shaun Lee, Chief Justice Menons Keynote Address to CIArb
International Arbitration Conference, Aug. 28, 2013, available at http://singapore
internationalarbitration.com/2013/08/28/chief-justice-menon-keynote-address-to-ciarbinternational-arbitration-conference.
6
For example, the Straus Institute for Dispute Resolution, Pepperdine University
School of Law, in addition to its LL.M. in Dispute Resolution, now offers an LL.M. in
International Commercial Arbitration. Examples of other relevant LL.Ms. include
programs sponsored by the University of Miami School of Law; Geneva Law School &
Graduate Institute of International and Development Studies (Geneva LL.M. in
International Dispute Settlement (MIDS)); American University Washington College of
Law (LL.M. in International Commercial Arbitration Specialization); New York
University School of Law (LL.M. in International Business Regulation, Litigation and
Arbitration); Columbia Law School (Center for International Arbitration provides
extensive arbitration curricula to LL.M. and J.D. candidates); and Queen Mary School of
Law (Comparative and International Dispute Resolution led by School of International
Arbitration).
7
See Gabril A. Moens, The Mysteries of Problem-based Learning: Combining
Enthusiasm and Excellence, 38 U. TOL. L. REV. 623, 629 (2007) (The prestigious Willem
C. Vis International Commercial Arbitration Moot trains leaders of tomorrow in the
principles of international trade law and arbitration law).
8
See, e.g., Oil-Gas-Energy-Mining-Infrastructure Dispute Management Listserv, at
ogemid@ogeltdm.com; Mediation and Arbitration Forum listserv, at mediate-andarbitrate@peach.ease.lsoft.com. In addition, Juris Arbitration Law provides a subscriptionbased database providing all kinds of materials related to international commercial
arbitration, available at http://www.arbitrationlaw.com.
9
See, e.g., Kluwer Arbitration Blog, http://kluwerarbitrationblog.com (last accessed
Oct. 16, 2014); Young ICCA Blog, http://www.youngicca-blog.com (last accessed Oct.
16, 2014); and blogs operated by law firms with substantial arbitration practice such as
398
[Vol. 25
communicate online, en masse, on a daily basis, sharing perspectives on diverse

issues of arbitration law and practice. These latter platforms avail every selfstyled arbitrator or arbitration practitioner of a never-ending stream of information
and free-flowing commentary, as well as a wide-open platform for personal
expression.
In light of all of these developments, it is surprising that there has never been
a wide-ranging, thoroughgoing survey of practices and perspectives among
experienced commercial arbitrators. An important opportunity to help fill this gap
was afforded in connection with an invitation to Professor Stipanowich to prepare
and present a report on the present and future of commercial arbitration for the
CCA in the fall of 2013.10 The resulting CCA/Straus Institute for Dispute
Resolution Survey on Arbitration Practice (CCA/Straus Institute Survey or
Survey) was conducted under the umbrella of the Straus Institutes Theory-toPractice Research Project. The CCA/Straus Institute Survey consisted of 65
multiple-choice and short-answer questions on respondents arbitration
experiences and opinions on arbitration practices and the future of the arbitration
field-at-large. The Survey was sent electronically to 212 individuals, all CCA
Fellows, of whom 134 individuals (63.2% of the subject pool) completed the
survey instrument. The great majority of the respondents claimed experience with
both U.S. domestic11 and international arbitrations,12 and the Survey included
questions pertaining to both. Moreover, although the heavy emphasis of
Herbert Smith Freehills Dispute Resolution Blog, http://hsfnotes.com/arbitration (last

accessed Oct. 16, 2014); Arbitration Nation Blog, http://arbitrationnation.com (last
accessed Oct. 17, 2014).
10
Professor Stipanowichs resulting report, Reflections on the State and Future of
Commercial Arbitration: Challenges, Opportunities, Proposals will be frequently
referenced throughout this article. See generally Stipanowich, supra note 1.
11
The term domestic arbitration was defined in the Survey as arbitrations in the
U.S. between U.S. parties that would not normally be characterized as international. It
should be noted that this definition, which was adopted for the sake of convenience, is not
entirely consistent with the criteria set forth in the U.S version of the New York
Convention, which states:
An arbitration agreement or arbitral award arising out of a legal relationship,
whether contractual or not, which is considered as commercial, including a
transaction, contract, or agreement described in section 2 of this title, falls under
the Convention. An agreement or award arising out of such a relationship which
is entirely between citizens of the United States shall be deemed not to fall under
the Convention unless that relationship involves property located abroad,
envisages performance or enforcement abroad, or has some other reasonable
relation with one or more foreign states. For the purpose of this section a
corporation is a citizen of the United States if it is incorporated or has its
principal place of business in the United States.
9 U.S.C. 202 (2012).
12
See infra Part III.A. for references to respondents experiences arbitrating
international cases.
2014]
399
respondents arbitration practice is on business disputes, they also reflect

experiences with arbitration involving employees and consumers.13
As an exposition of the data gleaned from the CCA/Straus Institute Survey,
this article is presented as a companion piece to Professor Stipanowichs report,
Reflections on the State and Future of Commercial Arbitration: Challenges,
Opportunities, Proposals.14 The Reflections provide context and an analytical
framework for much of the data summarized in the following pages.
We acknowledge the limitations of the present effort, and offer several
caveats respecting the data presented here. First of all, in surveys of this kind
respondents may be tempted to provide answers that enhance perceptions of
themselves or to fake good that is, to provide what they regard as a desired or
personally favorable response even though results are anonymized. Thus, they
might inflate their level of experience or make statements regarding their practices
or perceptions tailored to the purpose of bringing themselves into line with what
they perceive to be accepted or desirable conventional norms.15 In constructing
the Survey we took a number of steps to address concerns about faking good.16
Second, individuals who practice as arbitrators are often very busy people,
and their responses may be flawed by inattention. In a rushed world where multitasking is the norm, it should be expected that some arbitrators may not have had
13
See infra text Part III.B. Because this Survey was developed in connection with
Professor Stipanowichs treatment of the state and future of commercial (B2B) arbitration,
it was primarily intended to elicit information directly relevant to current issues and
concerns in that sphere. See supra note 1. However, there is no question that because
some of the Survey respondents were also engaged in arbitration pursuant to
agreements that are in various respects adhesive with respect to consumers or
employees, some of the Survey data may be relevant to considerations of the due process
concerns of such individuals. See infra note 130, discussing concerns associated with
early disposition of cases during arbitration. That being said, the strong focus of this
exposition is on arbitration of commercial cases.
14
See Stipanowich, supra note 1.
15
See, e.g., THOMAS R. BLACK, DOING QUANTITATIVE RESEARCH IN THE SOCIAL
SCIENCES: AN INTEGRATED APPROACH TO RESEARCH DESIGN, MEASUREMENT AND
STATISTICS 223 (1999) (discussing how faking . . . a good . . . overall impression . . . is a
serious problem . . . when the intent of [Survey] items is rather transparent).
16
In an effort to discourage faking good, the authors attempted to phrase Survey
questions so as to minimize any potentially evinced prejudices or connotations regarding
the answers respondents might provide. For instance, when asking about the number or
value of cases respondents had arbitrated throughout their careers, questions were phrased
succinctly and without any regard to any connotation of professional success or
failure that respondents might otherwise assume the questions were meant to gauge.
Another potentially confounding factor of any survey study is order-effect bias,
where respondents answers may be affected by the order in which they have been asked
previous questions before giving a particular response. See William D. Perreault,
Jr., Controlling Order-Effect Bias, 39 THE PUB. OPINION Q. 544, 544-51 (1975). In order
to control for the order-effect bias, questions asking respondents to give answers to
multiple, related prompts were randomized for each respondent.
400
[Vol. 25
the time, or been sufficiently focused, to carefully read the questions presented or
reflect upon their answers.
Third, it is clear that when it comes to perceptions of what they do and how
they do it, the views of dispute resolution professionals may differ markedly from
those of the business parties and legal advocates with whom they interact. It
would, of course, have been even better to have canvassed the views of all these
stakeholders. However, given the opportunity to have the assistance of colleagues
at the College of Commercial Arbitrators to encourage members all experienced
arbitrators to share wide-ranging, in-depth information, we could not pass up the
opportunity.
Finally, we are not in a position to say that the data obtained from the group of
experienced, relatively well-known arbitrators who were subjects of the Survey
are representative of commercial arbitrators in general, or the full range of
individuals who perform arbitration services of different kinds in the U.S.17
Despite all of these limitations, we hope that the present Survey will serve as a
general foundation or starting point, if not a baseline, for future empirical efforts.18
During the course of this exposition we suggest a number of subjects warranting
more intense scrutiny.
Part II of this article offers a detailed profile of the experienced arbitrators
who responded to the Survey, including information on age, gender, professional
backgrounds, length and depth of experience in arbitral roles, extent of current
professional activity, and perceptions regarding the sufficiency of arbitrator work.
Part III provides an extensive look at the scope of the groups collective arbitrator
practice, including practice as an arbitrator in international cases; kinds of disputes
arbitrated; and experience with a variety of arbitration variants including: singlearbitrator proceedings, tripartite arbitration involving party-appointed arbitrators,
appellate arbitration, ad hoc arbitration and arbitration under non-administered
arbitration rules, streamlined or fast track arbitration, baseball or final offer
arbitration, arbitration with bracketed awards, emergency arbitration
procedures, and multi-disciplinary tribunals. Part IV explores the rich array of
techniques reflecting more proactive pre-hearing management by experienced
17
For a sense of the broad spectrum of activity that falls under the expansive, diverse
rubric of arbitration, see JAY FOLBERG, DWIGHT GOLANN, THOMAS J. STIPANOWICH &
LISA KLOPPENBERG, RESOLVING DISPUTES: THEORY, PRACTICE & LAW Ch. 15 (2d ed.
2010) [hereinafter RESOLVING DISPUTES].
18
Another, parallel empirical study is the International Academy of Mediators/Straus
Institute Survey on Mediator Practices and Perceptions, conducted in 2014. The
IAM/Straus Institute Survey was sent to 153 individuals, all IAM Fellows, and 85.0%
(130 individuals) participated in the survey; 78.4% (120 individuals) completed the entire
survey. The respondent pool included individuals who stated they regularly practiced in
Africa; Asia, including the Middle East; Australia and New Zealand; Canada; Europe
(both Western and Eastern, with a majority from the UK); Latin America; and the United
States. These and other data from the IAM/Straus Institute Survey will be published in
Thomas J. Stipanowich & Zachary P. Ulrich, The New Age of Mediation: Current
Perspectives and Practices of Experienced Mediators (article in progress).
2014]
401
arbitrators, including strategies for addressing dispositive motions and pre-hearing

discovery, while Part V summarizes many approaches used in the management of
hearings. Part VI highlights practices and perspectives regarding adherence to
legal standards and other key issues associated with arbitrator deliberation and
award-making. Part VII touches on recent increases in the incidence of settlement
during arbitration proceedings and a variety of topics associated with this rarely
treated subject. Part VIII considers respondents experiences playing other thirdparty roles in dispute resolution, including rendering non-binding or advisory
arbitration decisions, engaging in early neutral evaluation or early case
assessment, and serving as a mediator. Part IX examines perceptions of the
efforts of institutional arbitration service providers to improve or maintain the
quality of arbitration services and user satisfaction with arbitration. Part X
explores respondents expectations regarding trends potentially affecting
arbitration practice. Part XI briefly touches on perceived differences between
U.S. and international arbitration practice, and Part XII offers respondents
forecasts of the usage of various ADR processes in the coming decade.
II. SURVEY GROUP PROFILE
The CCA/Straus Institute Survey portrays a group of experienced arbitrators
who by and large are elders.19 They are virtually all members of the legal
profession an apparent reflection of the dominance of lawyers in arbitration and
the growing legal orientation of arbitration.20 They are overwhelmingly male,21
although there are signs that women, who are gradually moving up through the
ranks of legal professionals, are increasingly developing successful careers as
arbitrators.22 They tend to have considerable experience as arbitrators.23 Finally,
although they depend on arbitral appointments to provide them with revenue or
other tangible benefits, if only a continuing sense of purpose in retirement,24 most
of them think they dont have enough work.25
A. Age
Subjects were given the option of whether or not to indicate their birth year;
109 individuals did so. At the time the Survey was administered, respondents
varied in age between 49 and 88 a four-decade range. Their average age was
almost 69 (68.7); their median age was 67.26 As reflected in Chart A below,
19
See infra Part II.A.

See infra Part II.C.
21
See infra Part II.B.
22
See infra text accompanying notes 52-55, Charts F, H.
23
See infra Part II.D.
24
See infra Part II.F.
25
See infra Part II.E.
26
These results were obtained by taking the difference between the year of Survey
administration (2013) and the year of birth indicated by respondents. Of the 110 respondents
answering the question, 109 provided calculable numerical answers that were used.
20
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[Vol. 25
40.0%27 of respondents indicated that they were between the ages of 61 and 70
inclusive, and an even greater number (46 individuals, or 41.8%) were 71 or older.
Only one individual was fifty years of age or younger.
Chart A. Arbitrator Age
40.0%
(44)
45%
40%
34.5%
(38)
35%
30%
25%
16.4%
(18)
20%
15%
7.3%
(8)
10%
5%
0.0%
0.0%
0.9%
(1)
30 or less
31-40
41-50
0%
51-60
61-70
71-80
81+
The data indicate that these experienced arbitrators are virtually all beyond the
median age of practicing lawyers.28 More than 70% of them are 65 or older, as
compared to only 13% of licensed attorneys.29 Because recognition as a Fellow of
the CCA is normally accorded to arbitrators who have been in practice for some
time, this is not a great surprise. The results support the conclusion that arbitrators
are often selected from senior ranks of professionals. Moreover, as indicated
below, such individuals often carry on their activities as arbitrators for decades.30
B. Gender
Respondents were given the option of indicating their gender; 123 individuals
did so. As shown in Chart B, an overwhelming majority (84.6%) represented that
they were male; only 15.4% were female.
38%
(42)
27
All Survey data presented in this piece have been rounded to the nearest tenth-place
decimal.
28
As of 2005, the median age of licensed lawyers was 49 years of age. American Bar
Association, Lawyer Demographics (2013), available at http://www.americanbar.org/
content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2013.
authcheckdam.pdf.
29
See id. (summarizing data from 2005).
30
See infra text accompanying notes 45-48.
2014]
403
Chart B. Arbitrator Gender

Q: What is your gender?
Female
15.4%
(19)
Male
84.6%
(104)
These data are representative of the overall membership of the surveyed

population, the membership of the CCA.31 They are also broadly consistent with
other recent data reflecting the relative paucity of females among the ranks of
practicing arbitrators.32 The data reinforce the conclusion that the representation
of women in this arena lags well behind the overall representation of women
within the legal profession.33
Among those female respondents who reported both their gender and their
age, the average age was 62.8 years old, almost six years younger than the average
for the entire respondent pool34 and 6.7 years younger than the average age of
their male counterparts.35 Not one female respondent reported being over 71 years
of age,36 a truly remarkable fact when one considers that, as mentioned above,
31
At present, the CCA consists of 234 members, of which 36 are female. The latter
represent 15.4% of the total membership. E-mail of Bill Seward, CLE Resolutions, to
Thomas J. Stipanowich (Aug. 7, 2014).
32
See, e.g., Deborah Rothman, Gender Diversity in Arbitrator Selection, 18 DISP.
RESOL. MAG. 22 (2011-2012) (2010 report from American Arbitration Association indicates
that women represented 25% of the AAAs National Roster, and were appointed in only
15% of cases involving large monetary claims); Cynthia Alkon, Women Labor Arbitrators:
Women Members of the National Academy of Arbitrators Speak About the Barriers of Entry
into the Field, 6 APPALACHIAN J. L. 195, 196 (2007) (women represent 15% of the roster of
the National Academy of Arbitrators, a leading organization of labor arbitrators).
33
As of 2005, 30% of licensed lawyers were women. See supra note 28. Again, this
professional comparison is offered in light of the fact that virtually all of the respondents
in our Survey reported legal professional backgrounds. See infra Part II.C.
34
See supra text accompanying note 26.
35
The average age of those respondents who indicated their age and also indicated
that they were male was 69.5 years old.
36
Of the four oldest female respondents, one reported being 71 years old, and another
three, 67 years old.
404
[Vol. 25
more than 41.8% of all CCA/Straus Institute Survey respondents indicated that
they were 71 or older!37
A partial explanation for these realities lies in the history of the U.S. legal
profession, which (as explained below) is the background of nearly all the
respondents to the Survey. As recently as 1980 a date by which many, if not
most, of our female survey respondents had probably graduated from law school
only about 8% of licensed attorneys in the U.S. were female.38 A decade earlier,
only 4% of attorneys were women.39 In light of these statistics and the formidable
barriers they represented to the admission and advancement of women in the legal
profession, one might consider it worthy of note that even 15.4% of fifty- and
sixty-something experienced arbitrators who are recognized by their peers as CCA
Fellows are women. If the CCA data are any indication, women are beginning
to break through the glass ceiling in commercial arbitration, but they are still a
long way from parity with their male colleagues.
C. Professional Backgrounds
The Survey results depict a cadre of arbitrators with varied professional
specialties, but nearly always as lawyers and judges. Chart C shows that the great
majority (81.9%) of respondents reported having litigation backgrounds. About
three in ten (28.3%) claimed experience as transactional attorneys, and 9.4% as
judges.40 Although two individuals reported having non-legal backgrounds,
only one lacked experience as an attorney.
Chart C. Professional Background
Q: How would you characterize your professional background?
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
81.9%
(104)
28.3%
(36)
9.4%
(12)
Attorney litigation
37
Attorney transactional
Judge
1.6%
(2)
Non-legal
background
See supra Chart A.

See supra note 28.
39
CYNTHIA FUCHS EPSTEIN, WOMEN IN LAW 5 (2d ed. 1993).
40
Respondents were given the option to identify more than one background.
38
2014]
405
There is no question that in this era of judicialized arbitration greater

emphasis has been placed on law, litigation-style lawyering and legal standards in
arbitration.41 However, given the fact that there is no legal requirement for
arbitrators to be members of the bar and, moreover, that multidisciplinary panels
have long been employed in the arbitration of construction disputes and other
kinds of controversies,42 the overwhelming hegemony of lawyer arbitrators
reflected in the Survey data, particularly those with litigation experience, is truly
surprising. Although the data are undoubtedly a reflection of the legal orientation
that has characterized the CCA from its origins,43 there is reason to believe that
today, general speaking, commercial arbitrators are more likely to be attorneys than
in former days, and that the participation of non-lawyer arbitrators is diminishing.44
One must ask, are business parties better off using all-lawyer tribunals, or are there
circumstances in which a mix of expertise may be more appropriate?
D. Length and Depth of Experience as Arbitrator
Survey participants claimed long and extensive experience serving as
arbitrators,45 as might be expected among Fellows of an organization of
experienced arbitrators. The 127 individuals who responded to the open-ended
question, In what year did you first serve as an arbitrator? indicated that their
first arbitration experience had occurred an average of 26.7 years prior to the
Survey; the median was 26 years.46 As indicated in Chart D,47 the great majority
See Thomas J. Stipanowich, Arbitration: The New Litigation, 2010 U. ILL. L.
REV. 1, 6-33; Alan Redfern, Stemming the Tide of Judicialization in International
Arbitration, 2-5 WORLD ARB. & MEDIATION REV. 21 (2008).
42
Thomas J. Stipanowich, Managing Construction Conflict: Unfinished Revolution,
Continuing Evolution 19 (Pepp. Univ., Working Paper No. 22, 2014), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=24 84598.
43
Professor Stipanowich was one of the founders of the CCA, along with a number of
other dispute resolution professionals with legal backgrounds.
44
See infra Part III.K.
45
Except where otherwise noted, Survey questions pertaining to participants
individual experiences did not differentiate between domestic (United States-centric)
and international experience (beyond the United States) and thus is assumed to include
all of respondents professional experience worldwide.
46
These measures of central tendency were determined by taking the difference
between the year of Survey administration (2013) and the year respondents indicated
they first arbitrated a case. The authors used all calculable, open-ended responses (124
individuals) and excluded three responses that they were unable to interpret as an exact
year in which the subjects first arbitrated a case.
47
Chart D includes the response data of all 127 individuals who answered this openended question. All responses containing information other than a numerical value (six
individuals, or 4.7% of respondents) were classified into various career-length categories.
For all responses the most conservative estimate (that is, the lowest number of years a
respondent could possibly have arbitrated, given his or her response) was used to
categorize the data.
41
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[Vol. 25
(78.7%) of respondents reported that their first service as arbitrators was at least
two decades ago, and more than one-third (37.0%) had first arbitrated thirty years
or more before.
The data also reflect the increasing participation of female arbitrators in the
field. Of the 47 respondents who indicated they had first arbitrated at least 30
years ago, only two were female. However, ten of the 52 respondents who first
arbitrated between 20 and 29 years ago were female, and almost one-quarter (six)
of the 25 respondents who had practiced as arbitrators between ten and 19 years
were women.
Chart D. Years since Initial Service as an Arbitrator
45%
41.7%
(52)
40%
35%
30%
23.6%
(30)
25%
18.9%
(25)
20%
13.4%
(17)
15%
10%
5%
1.6%
(2)
0.8%
(1)
0%
1 9 years
10 19
years
20 29
years
30 39
years
40+ years
Don't
Know,
Other, N/A
As depicted in Chart E below, Survey participants tended to have arbitrated a

substantial number of cases.48 Almost two-thirds of participants (59.8%) reported
having served as an arbitrator more than 100 times throughout their career.
48
Chart E includes the response data of all 127 individuals who answered this openended question. All responses containing information other than a numerical value (29
individuals, or 22.8% of respondents) were classified into various categories. For all
responses the most conservative estimate (that is, the least number of times a respondent
could possibly have arbitrated given his or her response) was used to categorize the data.
2014]
407
Chart E. Total Cases as an Arbitrator

Q: How many times have you served as an arbitrator during your entire career?
1,000+ times
3.9% (5)
501 999 times
3.9% (5)
251 500 times
22.0% (28)
101 250 times
30.7% (39)
51 100 times
21.3% (27)
50 times or less
13.4% (17)
Dont Know, Other, N/A
4.7% (6)
0%
5%
10%
15%
20%
25%
30%
35%
The average number of reported cases was 292; the median was 175.49 The
group average was dramatically skewed by the reported experiences of a handful
of individuals who claimed to have arbitrated more than 500 cases.50 For this
reason, the median figure of 175 arbitrated cases appears to be more
representative of the group as a whole.
49
These results were obtained by using all calculable, open-ended responses (121
individuals) and exclude six responses that the authors were unable to interpret as an
approximate number of cases arbitrated.
50
The ten respondents who reported they had arbitrated over 500 cases were
contacted by the authors for the purpose of ascertaining more information about their
experience as arbitrators (including whether or not their experience included a large
percentage of cases that could be disposed of relatively quickly) and whether or not they
correctly interpreted the question. We received responses from seven of the ten. Two
individuals acknowledged that they had overstated their estimated arbitration experience
and dramatically reduced their estimates. (Chart E above includes their data based on their
amended estimates.) The others offered insights into the kinds of cases they handled and
their experience with paper hearings (cases by document included smaller (<$100K),
straightforward business transactions, matters where respondent didnt defend, [cases
involving] attorneys fees; I generally get appointed to 20-25 a year; most settle and a
small number may be documents[-]only; approximately 150 of the 650 were
documents[-]only cases). Another explained:
In my early years many of the arbitrations were court-annexed judicial
arbitrations which, as you know, are truncated proceedings with much evidence
coming in by offer-of-proof statements and documents. I averaged five to six a
month of these for several years. A couple of years ago I did participate in
AAAs consumer debt program, but I think I handled less than 20 [cases] before
the program ceased.
408
[Vol. 25
Taking together the median number of cases arbitrated 175 and the
average number of years since the first arbitration experience 26.7 we arrive at
a number of 6.6 arbitrated cases per year, which may serve as a rough indicator of
the annual caseload of Survey respondents. However, because the time and
effort required to arbitrate different cases varies dramatically, this calculation does
not tell us a great deal about the actual workload of Survey respondents. Survey
group perceptions of arbitrator workload are addressed below.51
When these data are broken out by gender, as reflected in Chart F52 below, it
appears that, generally speaking, female arbitrators tend to have somewhat lower
overall numbers of experiences as arbitrators than their male counterparts. A
higher percentage of females reported having arbitrated 50 times or less and a
higher percentage of males reported arbitrating 101-500 times.
Chart F. Total Cases as Arbitrator (By Gender)
Q: How many times have you served as an arbitrator during your entire career?
1,000+ times
5.3% (1)
3.8% (4)
501 999 times
5.3% (1)
3.8% (4)
15.8% (3)
251 500 times
21.9% (23)
26.3% (5)
101 250 times
21.1% (4)
21.9% (23)
51 100 times
21.1% (4)
50 times or less
12.4% (13)
5.3% (1)
4.8% (5)

0%
5%
10%
Females
51
31.4% (33)
15%
20%
25%
30%
35%
Males
See infra text accompanying notes 60-63, Charts M, N, O and P.

Nineteen of the respondents who answered this question also indicated they were
female, while 105 of the respondents also indicated they were male. Because there were
so few females in the sample, one consideration for this and all subsequent gender-based
analyses is that the small sample of female arbitrators may not be representative of female
arbitrators generally.
52
2014]
409
Over the past decade, the typical caseload of Survey participants appears to
have increased. As shown in Chart G, 53 Survey participants indicated that over
the past ten years they had arbitrated an average of 134 cases; the median number
was 100 cases.54 Based on a median caseload of 100 cases, the annual caseload
for the past ten years is ten cases per year, as compared to 6.6 cases per year for
participants entire careers as an arbitrator.
Chart G. Cases as Arbitrator during Previous Ten Years
Q: How many times have you served as an arbitrator in the past 10 years?
500+ times
2.4% (3)
251 499 times
7.1% (9)
31.5% (40)
101 250 times

51 100 times
24.4% (31)
26 50 times
17.3% (22)
25 times or less
13.4% (17)
3.9% (5)
0%
5%
10%
15%
20%
25%
30%
35%
When the data regarding the number of cases arbitrated during the last ten
years is segregated by gender, as shown in Chart H55 below, the distinctions
between female and male experiences appear to be less pronounced than the
corresponding differences with regard to overall numbers of cases arbitrated
during respondents careers (Chart F).
53
Chart G includes the response data of all 127 individuals who answered this openended question. All responses containing information other than a numerical value (30
individuals, or 23.6% of respondents) were classified into the shown categories. For all
responses the most conservative estimate (that is, the least number of times a respondent
could possibly have arbitrated given his or her response) was used to categorize the data.
54
These results were obtained by using all calculable, open-ended responses (122
individuals) and exclude 5 responses (3.9% of responses) that the authors were unable to
interpret as an approximate number of cases arbitrated.
55
Nineteen of the respondents who answered this question also indicated they were
female, while 105 of the respondents also indicated they were male.
410
[Vol. 25
Chart H. Cases as Arbitrator during Previous Ten Years (By Gender)

Q: How many times have you served as an arbitrator in the past 10 years?
5.3% (1)
1.9% (2)
500+ times
251 499 times
0.0% (0)
8.6% (9)
31.6% (6)
101 250 times

30.5% (32)
21.1% (4)
24.8% (26)
51 100 times
21.1% (4)
17.1% (18)
26 50 times
15.8% (3)
13.3% (14)
25 times or less
5.3% (1)
3.8% (4)

0%
5%
10%
Females
15%
20%
25%
30%
35%
Males
E. Current Professional Status and Activity

One important aspect of the Survey effort was to collect data on subjects
current professional work status, the percentage of their working hours devoted to
service as an arbitrator, and their subjective perceptions regarding their current
level of arbitration work. As depicted in Chart I below, of 127 individuals who
responded, almost three-fourths (74.0%) reported that they worked full-time.
2014]
411
Chart I. Current Working StatusFull-Time vs. Not Full-time

Q: Do you currently work full-time?
Full-Time
74.0%
(94)
Not
Full-Time
26.0%
(33)
Survey respondents reflect current trends toward extended working lives.56

Of the 94 individuals who indicated they worked full-time, 53 (56.4%) were at
least 65 years of age; four of these individuals were more than 80 years old.
As shown in Chart J, 18 of the 33 individuals who indicated they did not work
full-time identified themselves as working part-time. The others described
themselves as being retired or semi-retired; nearly all these respondents (14 of
15) were 65 years of age or older.
56
Kelly A. Holder & Sandra L. Clark, Working Beyond Retirement-Age, U.S. Census
Bureau, Housing and Household Economics Division, Labor Force Statistics Branch,
available at http://www.census.gov/hhes/www/laborfor/Working-Beyond-RetirementAge.pdf (the labor force participation rates for the population 65 years and older will
increase through 2014).
412
[Vol. 25
Chart J. Breakout of Arbitrators Not Working Full-Time

Q: How would you characterize your current professional status?
Semi-Retired /
Work
Occasionally
Full-Time
74.0%
(94)
Not
Full-Time
26.0%
(33)
9.5%
(12)
Part-Time
14.2%
(18)
Retired
2.4%
(3)
Respondents were also asked what proportion of their professional working

time (independent of their overall level of professional activity) was devoted to
practice as an arbitrator. Data collected from 126 Survey participants indicate that
respondents dedicated, on average, 58.8% of their working time to such arbitration
practice.57 As shown in Chart K,58 two-thirds of respondents (66.6%) reported
devoting at least half of their working time to service as an arbitrator; more than
one-fifth (20.6%) indicated work as an arbitrator occupied 90% or more of their
working hours.
57
As all open-ended responses were able to be interpreted as numerical responses,

these measures of central tendency included responses from all 126 individuals who
answered this question.
58
Chart K includes the response data of all 126 individuals who answered this openended question. Because the question was open-ended, some respondents provided a
range (e.g., 25%-40%) instead of just one percentage value. In those instances, the most
conservative value was used for the data shown (e.g., if someone wrote 25%-40%, the
answer was interpreted to say 25% so as not to overestimate any one individuals
working time dedicated to arbitration practice).
2014]
413
Chart K. Practice as Arbitrator as Percentage of Working Time

Q: What percentage of your work time is currently devoted
to practice as an arbitrator?
25%
21.4%
(27)
17.5%
(22)
20%
Percentage of Respondents
20.6%
(26)
15.1%
(19)
13.5%
(17)
15%
9.5%
(12)
10%
5%
2.4%
(3)
0%
0%
1%-25%
26%-49%
50%
51%-75%
76%-89%
90%+
Percentage of Work Time
Chart L provides a comparison of portions of work time devoted to service as

an arbitrator between respondents employed full-time and those who were retired,
semi-retired, or working part-time.59 It is perhaps no surprise that respondents
who were retired, semi-retired, or part-time workers tended to devote relatively
high percentages of their work time to service as arbitrators. Sixteen of the 26
individuals who devoted more than 90% of their work time to service as
arbitrators were in these categories. For the most part, however, respondents
reflected a diverse array of experiences when it came to the percentage of time
they spent as arbitrators.
59
One hundred and twenty-six respondents answered all three of the questions
pertaining both to working status and percentage of workload dedicated to arbitration
practice, including 93 who indicated they worked full-time, 18 part-time, 12 who said
they were semi-retired/work occasionally, and three who indicated they were retired.
414
[Vol. 25
Chart L. Percentage of Time Devoted to Service as

Arbitrator by Work Status
66.7% (2)
90%+
10.8% (10)
0.0% (0)
0.0% (0)
76% - 80%
11.1% (2)
10.8% (10)
0.0% (0)
16.7% (2)
22.2% (4)
22.6% (21)
51% - 75%
0.0% (0)
50%
58.3% (7)
38.9% (7)
8.3% (1)
11.1% (2)
17.2% (16)
0.0% (0)
8.3% (1)
5.6% (1)
26% - 49%
21.5% (2)
0.0% (0)
1%-25%
8.3% (1)
11.1% (2)
15.1% (14)
33.3% (1)
0.0% (0)
0.0% (0)
2.2% (2)
0%
0%
Retired
10%
20%
30%
Semi-retired / work occasionally
40%
50%
Working part-time
60%
70%
Working full-time
One noteworthy result regarding participants professional statuses and

activities is that, as exhibited in Chart M, over three-fifths (57.2%) of the 126
respondents indicated they perceived the quantity of arbitration work they enjoyed
as being [s]omewhat less work than I would like or a lot less work than I
would like.60 About one-third of respondents (34.9%) described the current
quantity of their arbitration work as sufficient while a small number claimed to
have more work than they would like.
60
This calculation does not include three individuals who indicated they had no work
at all. These three individuals stated that they dedicated 0% of their current
professional time to serving as arbitrators, which may possibly indicate that they were not
actively pursuing an arbitration practice at the time of Survey administration. One of these
individuals was retired; the other two were employed full-time.
2014]
415
Chart M. Perceived Sufficiency of Work as Arbitrator

Q: Which of the following most accurately describes the current
quantity of your arbitration work?
No work at all
2.4% (3)
A lot less work than I would like
15.1% (19)
42.1% (53)
Somewhat less work than I would like
34.9% (44)
A sufficient amount of work
5.6% (7)
More work than I would like

0%
5% 10% 15% 20% 25% 30% 35% 40% 45%
Chart N compares the perceptions of respondents who worked full-time

regarding the sufficiency of their arbitrator work with those of respondents who
were retired, semi-retired, or worked part-time.61 Of those respondents who
worked full-time, 42 individuals (45.2%) indicated they enjoyed a sufficient
quantity of arbitration work or better, while a greater number (49, or 52.7%)
reported having somewhat less or a lot less work than they would like.
Among the respondents who were retired, semi-retired or working part-time, nine
individuals (27.2%) regarded their amount of arbitrator work as sufficient or
better, while 23 (69.7%) perceived the amount of work as somewhat less or a
lot less than they would like. Thus, a majority of both groups of respondents
viewed their current arbitrator work as insufficient; however, those in the
retired/semi-retired/working part-time group appeared to be much more likely to
have such perceptions. Given that the sample group was comprised of some of
the most accomplished commercial arbitrators in the United States and abroad,
this result is a compelling indicator that the growing cadre of professional
arbitrators, whether actively retired or fully employed, are facing considerable
competition for limited numbers of cases.62
61
One hundred and twenty-six respondents answered both of these questions, of
whom 93 individuals indicated that they worked full-time and the other 33 individuals
responded that they either worked part-time, were semi-retired/worked occasionally,
or were retired.
62
See Stipanowich, Reflections, supra note 1, at 374-76.
416
[Vol. 25
Chart N. Perceived Sufficiency of Arbitrator Work by Work Status

Q: Which of the following most accurately describes the current
quantity of your arbitration work?
3.0% (1)
2.2% (2)
No work at all
21.2% (7)
12.9% (12)
A lot less work than I would like
48.5% (16)
Somewhat less work than I would like
39.8% (37)
24.2% (8)
A sufficient amount of work
38.7% (36)
3.0% (1)
6.5% (6)
More work than I would like

0%
10%
20%
Working part-time / Semi-retired / Retired
30%
40%
50%
60%
Working full-time
Chart O compares the perceptions of female and male respondents regarding

sufficiency of work as arbitrator.63 Given the relatively small number of female
respondents, care must be taken in drawing conclusions from these data. That being
noted, it cannot be said that female respondents had more negative perceptions
regarding the sufficiency of their arbitrator work than their male counterparts.
Chart O. Perceived Sufficiency of Arbitrator Work by Gender
52.6%
(10)
60%
44.2%
(46)
50%
31.7%
(33)
40%
30%
20%
10%
26.3%
(5)
15.8% 15.4%
(3) (16)
6.7%
0.0% (7)
(0)
5.3%
(1) 1.9%
(2)
0%
More work than I
would like
A sufficient amount Somewhat less work A lot less work than

of work
than I would like
I would like
Females
63
No work at all
Males
One hundred and twenty three respondents indicated both their gender and their
perceived workload. Of this group, 104 were male and 19 were female.
2014]
417
A separate comparison of those male and female respondents who indicated

they worked full-time is reflected in Chart P. Although the numbers are slightly
different, the results are generally parallel to those in Chart O. It appears that
female respondents in full-time practice did not have more negative perceptions
regarding the sufficiency of their arbitrator work than their male counterparts.
Chart P. Perceived Sufficiency of Arbitrator Work by Gender;
Full-TimeWorkers
53.3%
(8)
60%
50%
40%
26.7%
(4)
30%
20%
10%
40.8%
(31)
36.8%
(28)
0.0%
(0)
13.3% 13.2%
(2) (10)
7.9%
(6)
6.7%
(1) 1.3%
(1)
0%
More work than I
would like
A sufficient amount Somewhat less work A lot less work than I

of work
than I would like
would like
Full-time Females
No work at all
Full-time Males
F. Motivations for Service as Arbitrator

One goal of the Straus Institute Theory-to-Practice Research Project is to
understand peoples motivations for pursuing and maintaining practice as a
dispute resolution professional. Thus, Survey subjects were asked, Which of the
following . . . are reasons why you currently arbitrate? and were permitted to
select among various reasons or to identify other reasons. The results are depicted
in Chart Q below, which shows that respondents most common motivations for
service as arbitrators are extending or expanding their professional practice and
obtaining income.
Almost as many respondents claim to be motivated by a desire to do public
service. The latter may reflect general philosophies about the importance of
arbitration as an instrument of justice, although some respondents may be alluding
to active volunteer efforts in court-connected and bar-sponsored arbitration
programs, or even acceptance of a less-than-normal fee for service as, for
example, a FINRA securities arbitrator.64
64
Stephen J. Choi et al., Attorneys as Arbitrators, 39 J. LEGAL STUD. 109, 115 (2010).
418
[Vol. 25
Chart Q. Motivations for Service as Arbitrator

Q: Which of the following, if any, are reasons why you
currently arbitrate? Please select all that apply.
It is a means of enhancing my
professional reputation.
It is a means of professional networking.
50.4%
(63)
29.6%
(37)
72.0%
(90)
It is a form of public service to the legal

and/or business community.
76.0%
(95)
It is a means of increasing or maintaining

my income.
It is a logical extension of my professional
practice.
Other
37.6%
(47)
82.4%
(103)
0% 10% 20% 30% 40% 50% 60% 70% 80% 90%
The 47 participants65 who chose Other were asked to specify any other
reasons why they chose to practice as arbitrators. Among those respondents, almost
three-fifths (28 respondents, or 59.6%)66 offered comments to the effect that serving
as an arbitrator was fun, enjoyable or generally rewarding. Another 20
individuals (42.6% of that group) indicated that service as an arbitrator was
intellectually stimulating or generally interesting and another nine (19.1%)
thought that arbitrating was a good or the best usage of their talents, abilities,
and experiences, including prior service on the bench. (It is the closest to
continuing my work as a [j]udge following my retirement from the [b]ench.) Eight
respondents (17.0%) stated that they arbitrate to keep them active and engaged
after retirement. Finally, four individuals (8.5%) indicated that one reason they
arbitrate is because of the satisfaction they obtain by serving justice, including
in instances where they think the court system doesnt work well.
65
All responses were encoded into the categories discussed here so long as the
respondents intent was unambiguous and clearly fell within that categorys stated
description. Three responses (6.4% of the response sample) could not be categorized but
were still included in the stated sample size for purposes of accurately statistically
representing the response pool. In some cases, respondent statements were classified in
multiple categories.
66
Although perhaps obvious, it should be noted that there likely would have been a
higher response rate for these and other responses given by individuals who chose the
Other option had they been on the list of reasons included in the Survey instrument.
2014]
419
III. SCOPE OF ARBITRATION PRACTICE

A major focus of the CCA/Straus Institute Survey was the nature and breadth
of practice by Survey subjects. The Survey produced a wide range of information
regarding the experiences of respondents and, by inference, the skill sets they have
developed that should be taken into account by parties and counsel considering the
use of arbitration and the procedural choices available to them.
A. Practice as an Arbitrator in International Disputes
The flourishing of global commerce has led to the growing use of
international arbitration,67 and anecdotal evidence indicates that many U.S.
arbitrators are gaining experience arbitrating international disputes. Therefore, the
CCA/Straus Institute Survey included a series of questions intended to glean
information regarding subjects experience as arbitrators of international disputes.
As indicated in Chart R, a large majority of respondents (108 of 128, or 84.4%)
affirmed that they had such experience.
Chart R. Experience Arbitrating International Disputes
Q: Have you served as an arbitrator with respect to international disputes?
Yes
84.4%
(108)
No
15.6%
(20)
Those who indicated experience arbitrating an international dispute were

given a series of follow-up questions regarding their experiences with
67
See supra note 3.
420
[Vol. 25
international arbitration.68 Among other topics, they were asked to indicate the
number of international cases they had arbitrated in the last five years, and the
number of cases they arbitrated prior to that time. Chart S presents these data
side-by-side to permit comparison.
Chart S. Experience Arbitrating International Disputes
Q: In how many international cases have you served as
an arbitrator in the last five years?
Q: In how many international cases did you serve prior to five years ago?
100+ cases
2.8% (3)
1.9% (1)
51 99 cases
2.8% (3)
0.9% (1)
6.5% (7)
10.3% (11)
26 50 cases
14.0% (15)
19.6% (21)
11 25 cases
11.2% (12)
15.0% (16)
6 10 cases
43.9% (47)
46.7% (50)
1 5 cases
11.2% (12)
0 cases
3.7% (4)
7.5% (8)
1.9% (2)

0%
5%
10%
15%
20%
25%
Prior to 5 Years Ago
30%
35%
40%
45%
50%
55%
Last 5 Years
As reflected in Chart S, it appears that the group of experienced U.S.

arbitrators responding to the Survey has placed increased emphasis on arbitrating
international disputes in the past five years. Fewer arbitrators report having no
international cases during that period, and higher numbers of arbitrators reported
arbitrating between one and 50 international cases.
68
Of the 108 individuals asked follow-up questions regarding their international

arbitration experiences, 107 completed all of the questions and one individual completed
none; thus, all subsequent questions on this topic were answered by 107 individuals.
2014]
421
The same respondents were asked to estimate what percentage of their

arbitrator caseloads these international cases represented. The resulting data are
present side-by-side for the purpose of comparison in Chart T.
Chart T. International Disputes as Percentage of Arbitrator Caseload
Q: About what percentage of your total arbitration caseload
in the last 5 years/[prior to 5 years ago] do these cases represent?
0.0% (0)
3.7% (4)
100%
6.5% (7)
10.3% (11)
Percentage of Caseload
76% - 99%
2.8% (3)
51% 75%
15.9% (17)
15.0% (16)
15.9% (17)
26% 50%
13.1% (14)
11% 25%
2.8% (3)
43.0% (46)
43.9% (47)
1% 10%
9.4% (10)
3.7% (4)
0%
10.3% (11)
Dont Know, Other,

N/A
3.7% (4)
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
50%
Last 5 Years
The data in Chart T indicate that generally speaking, the groups international
arbitrator caseload for the prior five years was greater than before.
Finally, respondents were asked to estimate what percentage of their caseloads
will be represented by international disputes in the coming decade.69 Chart U
plots the summarized responses to this question side-by-side with estimates of
international caseloads for the last five years and the prior period.
The question asked, If you had to guess, during the coming decade what
percentage of your total arbitration caseload will be comprised of cases involving
international disputes?
69
422
[Vol. 25
Chart U. International Disputes as Percentage of Arbitrator Caseload:

Comparison of Estimated International Arbitrator Caseload for Coming
Decade vs. Caseloads for Last 5 Years and for Previous Period
100%
0.0% (0)
3.7% (4)
3.7% (5)
6.5% (7)
10.3% (11)
4.7% (5)
76% - 99%
2.8% (3)
Percentage of Caseload
51% 75%
15.9% (17)
14.0% (15)
15.0% (16)
15.9% (17)
20.6% (22)
26% 50%
13.1% (14)
11% 25%
2.8% (3)
20.6% (22)
43.0% (46)
1% 10%
26.2% (28)
43.9% (47)
9.4% (10)
3.7% (4)
4.7% (5)
0%
10.3% (11)
3.7% (4)
5.6% (6)
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
50%
Last 5 Years
Coming Decade
The data in Chart U reflect generally higher expectations among this group of
experienced arbitrators for participation in international arbitration in the coming
decade, with international cases becoming an even greater portion of arbitrators
caseloads.
2014]
423
B. Areas of Arbitrator Practice

Survey subjects were asked to provide information regarding the types of
international disputes they arbitrated; the responses of 127 respondents are
reflected in Chart V.70 Respondents were allowed to select as many categories as
they thought accurately represented their experience.
Chart V. Areas of Arbitrator Practice
Q: For what types of international disputes have you
served as an arbitrator? Please select all that apply.
Contracts
Construction
Technology
40.2% (51)
Energy/Utilities
37.0% (47)
Employment
35.4% (45)
Real Estate
32.3% (41)
Franchise
32.3% (41)
Securities/Brokerage
30.7% (39)
Insurance/Reinsurance
26.8% (34)
Entertainment
19.7% (25)
Consumer
19.7% (25)
Health Care
18.9% (24)
Medical
15.0% (19)
8.7% (11)
Malpractice
5.5% (7)
Labor Relations
22.0% (28)
Other
0%
70
82.7% (105)
46.5% (59)
45.7% (58)
Intellectual Property
10%
20%
30%
40%
50%
60%
70%
80%
90%
Through inadvertence, the final version of the Survey included no parallel question
focusing on the kinds of domestic disputes the subjects arbitrated. However, it is likely
that for most kinds of disputes, respondents domestic and international caseloads will
include similar kinds of cases. Possible exceptions include consumer and employment
disputes, which may not be as likely to be arbitrated in the international arena due to
public policy limitations in other countries arbitration laws. See Thomas J. Stipanowich,
The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future
of American Arbitration, 22 AM. REV. INTL ARB. 323, 407-21 (2011). Indeed, the fact
that so many respondents identified employment or consumer cases among the kinds of
international disputes they arbitrated makes one wonder if they misread the question to
refer to their arbitral practice generally.
424
[Vol. 25
Given the fact that binding arbitration is normally founded on agreement by the
parties, and, furthermore, is most often entered into under the terms of pre-dispute
arbitration provisions in other contracts,71 it was to be expected that the great
majority of respondents would report arbitrating contract disputes. Beyond this
general category, Chart V reflects a wide spectrum of arbitration experience.
Respondents who reported arbitrating Other kinds of disputes most frequently
reported arbitrating disputes pertaining to: foreign investment (five), bankruptcy
(four), transportation and shipping (four), telecom (two), antitrust actions (two),
expropriation (two), and sales, licensing, and distribution agreements (two).
C. Experience as Sole Arbitrator
Survey respondents were asked to report their experience acting as a sole
arbitrator (as opposed to serving as a member of a multi-member arbitration
tribunal) with respect to cases involving different amounts in controversy. As
reflected in Chart W, the great majority of respondents reported such experience.
Chart W. Experience as Sole Arbitrator
Q: Have you ever served as a sole arbitrator in a case involving disputes . . .
Because sole arbitrators appear to be used most frequently when the stakes are
low,72 it was to be expected that many respondents would report experience as
71
See REDFERN & HUNTER, supra note 1, at 85.

See, e.g., AMERICAN ARBITRATION ASSOCIATION [AAA], COMMERCIAL
ARBITRATION RULES AND MEDIATION PROCEDURES (rules amended and effective Oct. 1,
2013) (Expedited Rules, E-4. Appointment and Qualifications of Arbitrator: (a) The
AAA shall simultaneously submit to each party an identical list of five proposed
arbitrators drawn from its National Roster from which one arbitrator shall be appointed;
R. 16 Number of Arbitrators. (a) If the arbitration agreement does not specify the number
of arbitrators, the dispute shall be heard and determined by one arbitrator, unless the AAA,
72
2014]
425
sole arbitrators in disputes involving relatively small amounts in controversy.

This was certainly true: a large majority of respondents reported such experience.
More surprising, however, was the large percentage of respondents who had
served as individual arbitrators in big cases: almost a third (32.1%) claimed
such experience with disputes involving $50 million or more. This reality should
be of great relevance in the debate over the use of single arbitrators versus multimember tribunals.73
D. Tripartite Arbitration
A common method of selecting an arbitration tribunal is the tripartite
approach in which each of the parties unilaterally appoints one of the arbitrators
and the third arbitrator is appointed jointly by both parties or in some other agreed
fashion.74 Tripartite tribunals are used extensively in domestic arbitration
proceedings and are virtually ubiquitous in the international realm. 75 However,
scholars and practitioners continue to debate the impact of direct appointment on
the independence and impartiality of wing arbitrators.76 As indicated in Chart
X, more than 90% (90.8%) of responding Survey takers indicated experience as an
arbitrator on a tripartite tribunal.
in its discretion, directs that three arbitrators be appointed . . . [;] b) Any request for a
change in the number of arbitrators as a result of an increase or decrease in the amount of a
claim or a new or different claim must be made to the AAA . . . .). Cf. INTERNATIONAL
CHAMBER OF COMMERCE [ICC], RULES OF ARBITRATION, Art. 12 (effective Jan. 1, 2012)
(Where the parties have not agreed upon the number of arbitrators, the Court shall
appoint a sole arbitrator, save where it appears to the Court that the dispute is such as to
warrant the appointment of three arbitrators); LONDON COURT OF INTERNATIONAL
ARBITRATION [LCIA], ARBITRATION RULES, Art. 5.9 (effective Oct. 1, 2014) (permitting
the LCIA Court to appoint sole arbitrator in a default setting unless the nature and
circumstances of the dispute, its monetary amount or value, the location and languages of
the parties, the number of parties and all other factors which it may consider relevant in
the circumstances require a three-member tribunal).
73
MARGARET L. MOSES, THE PRINCIPLES AND PRACTICE OF INTERNATIONAL
COMMERCIAL ARBITRATION 123 (2d ed. 2012).
74
See Stephen C. Rogers, Can Tripartite Arbitration Panels Reach Fair Results?, 8(1)
DISP. RESOL. MAG. 27, 27 (2001).
75
Catherine A. Rogers, Regulating International Arbitrators: A Functional Approach
to Developing Standards of Conduct, 41 STAN. J. INTL L. 53, 106 (2005).
76
See Stipanowich, Reflections, supra note 1, at 336, 368-73; Jan Paulsson, Moral
Hazard in International Dispute Resolution; Presented to the Institute for Transnational
Arbitration Dallas; June 2010, 7(1) WORLD ARB. & MEDIATION REV. 205 (2013);
Andreas F. Lowenfeld, The Party-Appointed Arbitrator in International Controversies:
Some Reflections, 30 TEX. INTL L.J. 59 (1995); Dominique Hascher, Independence and
Impartiality of Arbitrators: 3 Issues, 27 AM. U. INTL REV. 789 (2012). See also Seth H.
Lieberman, Note, Somethings Rotten in the State of Party-appointed Arbitration:
Healing ADRs Black Eye that Is Nonneutral Neutrals, 5 CARDOZO ONLINE J. CONF.
RES. 10 (2004).
426
[Vol. 25
Chart X. Experience Serving on Tripartite Panels

Q: Have you served as an arbitrator on a tripartite arbitration tribunal,
in which each of the parties unilaterally appointed one of the arbitrators
and the third arbitrator was appointed jointly by both parties?
Yes
90.8%
(119)
No
9.1%
(12)
Those individuals with pertinent experience were asked to share their

perceptions regarding tripartite panels, as reflected in Table 1.
Table 1. Perceptions Regarding Tripartite Panels
Q: Based on your experience with tripartite panels, please indicate
how often each of the following occurs:
Tripartite tribunals work very

well.
Arbitrators appointed by
individual parties are
unqualified due to lack of
experience as arbitrators.
individual parties are
predisposed toward the party
that appointed them even
when the applicable
procedures require them to
be independent and
impartial.
About half
the time
Always
Usually
10.3%
(12)
66.7% 6.8%
(78)
(8)
16.2%
(19)
0.0%
(0)
0.0%
(0)
2.6%
(3)
55.6%
(65)
40.2%
(47)
0.0%
(0)
16.2% 11.1%
(19)
(13)
61.5%
(72)
11.1%
(13)
1.7%
(2)
Sometimes
Never
2014]
427
individual parties are just as
qualified as arbitrators
appointed jointly.
Tripartite tribunals work
together as cooperatively as
tribunals in which all
arbitrators are jointly
selected.
individual parties act
independently and impartially.
individual parties decide close
questions in favor of the party
that appointed them even
when the applicable
procedures require them to be
independent and impartial.
6.8%
(8)
66.7% 10.3%
(78)
(12)
16.2%
(19)
0.0%
(0)
8.5%
(10)
70.1% 4.3%
(82)
(5)
16.2%
(19)
0.9%
(1)
9.4%
(11)
53.9% 9.4%
(63)
(11)
25.6%
(30)
1.7%
(2)
0.9%
(1)
14.5% 12.0%
(17)
(14)
59.8%
(70)
12.8%
(15)
More than three-quarters (77.0%) indicated that usually (if not always),
[t]ripartite panels [usually] work very well; almost as many (73.5%) reported
that usually (if not always), arbitrators appointed directly by parties were as
qualified as other arbitrators; and 78.6% indicated that tripartite panelists worked
together as cooperatively as arbitrators who were jointly selected.
However, group responses to some other queries tend to reinforce some of the
concerns that have been expressed regarding wing arbitrators appointed
unilaterally by individual parties on tripartite panels.77 More than half the
respondents (59.9%) perceive that at least sometimes, party-appointees are
unqualified due to lack of experience as arbitrators. Moreover, almost ninetenths (88.8%) believe that at least sometimes, party-appointees are predisposed
toward the party that appointed them even when the applicable procedures require
them to be independent and impartial. A similar number (87.2%) perceive that
party-appointees at least sometimes decide close questions in favor of the party
that appointed them even when the applicable procedures require them to be
independent and impartial.78 These data offer ample bases for a thoroughgoing reexamination of the dynamics of tripartite panels and party-appointed arbitrators.79
77
See generally Paulsson, supra note 76.

See COMMERCIAL ARBITRATION AT ITS BEST: SUCCESSFUL STRATEGIES FOR
BUSINESS USERS 298-300 (Thomas J. Stipanowich & Peter H. Kaskell eds., 2001)
[hereinafter COMMERCIAL ARBITRATION AT ITS BEST] (discussing then-existing appellate
programs, pros and cons).
79
See Stipanowich, Reflections, supra note 1, at 335-36, 368-73. See also RASHDA
RANA & MICHELLE SANSON, INTERNATIONAL COMMERCIAL ARBITRATION 160-61 (2011).
78
428
[Vol. 25
E. Appellate Arbitration
Long utilized in some arbitration programs,80 optional appellate arbitration
procedures were put forward by leading institutions such as the CPR Institute for
Dispute Resolution81 and JAMS82 some years ago as an alternative for arbitrating
parties who desired the opportunity for a second look at arbitrators decisions on
the merits.83
As indicated in Chart Y, only a small percentage (10.7%) of Survey
respondents indicated experience with appellate arbitration. This is presumably
because appellate arbitration is not often employed and, moreover, because
applicable procedures may establish special qualifications for appellate arbitrators,
such as prior service on the bench.84
Chart Y. Experience as Appellate Arbitrator
Q: Have you served as an arbitrator under appellate arbitration rules
(such as, for example, those published by JAMS or CPR)?
Yes
10.7% (14)
No
89.3%
(117)
80
See COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 298-304. See also
Mauro Rubino Sammartano, The Fall of a Taboo: Review of the Merits of an Award by an
Appellate Arbitration Panel and a Proposal for an International Appellate Court, 20 J.
INTL ARB. 387, 390 (2003).
81
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION [CPR],
APPELLATE ARBITRATION RULES (revised 2007), available at http://www.cpradr.org/
RulesCaseServices/CPRRules/AppellateArbitrationProcedure.aspx.
82
JAMS, OPTIONAL ARBITRATION APPEAL PROCEDURE (effective June 2003),
available at http://www.jamsadr. com/appeal.
83
The American Arbitration Association recently published its own appellate
arbitration procedures. AAA OPTIONAL APPELLATE ARBITRATION RULES (effective
Nov. 1, 2013), available at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/
ADRSTAGE2016218.
84
For example, CPR organized an appeal panel consisting exclusively of former
federal judges who were also experienced arbitrators. See COMMERCIAL ARBITRATION AT
ITS BEST, supra note 78, at 301, n.134.
2014]
429
F. Ad Hoc Arbitration and Non-Administered Arbitration Rules

Ad hoc arbitration proceedings are those which are conducted pursuant to
rules agreed to by the parties or the arbitration tribunal, but where there is no
administering institution. In some cases, rather than relying on rules of their own
making, parties agree to use procedures specially developed for non-administered
arbitration, such as the UNCITRAL Arbitration Rules85 or the CPR Nonadministered Arbitration Rules.86 Both of these approaches were the subject of
Survey questions that sought information regarding subjects experiences and
perceptions.
As shown in Chart Z, roughly three-quarters (73.3%) of respondents indicated
experience as an arbitrator in ad hoc proceedings in which the parties were
responsible for determining and agreeing on their own arbitration procedures
rather than relying on the procedures of an arbitral institution.
Chart Z. Experience as Arbitrator in Ad Hoc Arbitration
Q: Have you served as an arbitrator in an ad hoc arbitration, in which the
parties were responsible for determining and agreeing on their own arbitration
procedures rather than relying on the procedures of an arbitral institution?
Yes
73.3%
(96)
No
26.7%
(35)
Those who had served as an arbitrator in ad hoc arbitrations were asked to

compare the overall cost and time to complete proceedings of ad hoc
arbitrations versus those conducted under the procedures of an arbitral institution.
85
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, UNCITRAL

ARBITRATION RULES (as revised in 2010).
86
INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION, NONADMINISTERED ARBITRATION RULES (effective Nov. 1, 2007).
430
[Vol. 25
As indicated in Chart AA, the responses were mixed. Almost half (45.8%)
viewed ad hoc proceedings as entailing similar costs while almost as many
(41.7%) perceived ad hoc arbitration as less costly. About 60% (59.4%) thought
ad hoc proceedings entailed similar dispute resolution cycle time while about a
quarter (24.0%) believed ad hoc proceedings took less time.
Chart AA. Ad Hoc Arbitrations vs. Usage of Institutional Procedures
Q: For those instances where you have served as an arbitrator in an ad-hoc
arbitration, how did those arbitrations compare to arbitrations conducted under
the procedures of an arbitral institution, in terms of overall cost and time to
complete proceedings?
65%
59.4%
(57)
60%
55%
45.8%
(44)
50%
45%
40%
34.4%
(33)
35%
30%
25%
19.8%
(19)
20%
15%
9.4%
(9)
10%
5%
0.0%
(0)
13.5%
(13)
7.3%
(7) 4.2%
(4)
1.0%
(1)
3.1%
2.1%
(3)
(2)
0%
Much greater
Greater
About the same
Overall cost
Less
Much less
Don't know
Time to complete proceedings
These same respondents were asked, What do you think caused the
differences in cost and length of proceedings, if any, between ad hoc arbitrations
and arbitrations conducted under the procedures of an arbitral institution? and
were given the opportunity to provide open-ended responses.87 The most
87
Where a response was sufficiently clear and unambiguous it was grouped into one
or more appropriate categories.
2014]
431
prevalent responses indicated no perceived difference between the cost or length

of ad hoc arbitrations versus those conducted under the procedures of an arbitral
institution (24 individuals, or 25.0% of all responses); that ad hoc arbitrations
were less costly due to their having less or no administrative fees (12 responses, or
12.5%);88 and that ad hoc processes improved communications between parties
and arbitrators, and between the parties themselves (6 individuals, or 6.3%).89
One respondent also commented that [o]ften the ad hoc rules are less complete
than rules of an arbitral institution. The incompleteness of such rules contributes
to uncertainty, and more numerous disputes on procedure, and two other
individuals expressed similar concerns about parties or arbitrators attempting to
conduct ad hoc arbitrations without sufficient experience to sift through the
procedural disputes that may arise when doing so. The sole individual who
perceived that ad hoc arbitrations take much greater time to complete than those
conducted under the procedures of an arbitral institution wrote that without an
arbitral body and without any rules, the parties are at sea and the proceedings drag
out.
Concerns such as those above sometimes spur parties who do not wish to have
arbitration administered by an organization to incorporate published procedures
for non-administered arbitration in their agreement.90 As depicted in Chart BB,
more than four-fifths (80.9%) of respondents had arbitrated under nonadministered rules (such as, for example, those of CPR or UNCITRAL).
In addition to subjects comments concerning reduced and eliminated

administrative fees, one participant suggested that ad hoc procedures cut process costs
because of party buy-in to negotiated cost structures. (The parties have bargained for
cost-cutting procedures and so they are easier to enforce when problems arise).
89
One respondent wrote that communications between the arbitrator(s) do not have
to be funneled through an administrator and there is no waiting for an administrator to
convene a preliminary hearing or any other discussion that is not evidentiary[!] On the
other hand, one participant wrote that ad hoc proceedings may take longer because as an
arbitrator [I] am unable to point to specific rules to limit discovery, motions or other
process delay. Another respondent discussed how, in their experience, ad hoc
proceedings were typically used for relatively lower-damages claims which may have
accounted for their relatively swift completion. (The ad hoc matters were generally less
complex and involved smaller damages claims. So, the parties were more motivated to
proceed efficiently and expeditiously).
Three respondents discussed how ad hoc arbitrations allow parties and arbitrators to
tailor proceedings more efficiently than when they are bound by arbitral institutions rules.
One respondent explained:
The parties can tailor the proceedings to the dispute. They are not
bound by the administrative rules of an organization. Generally, the
parties can agree upon the procedures that are to be employed, but
where they cant agree, the arbitrator can weigh the positions of the
parties and decide, which is often better than being bound by preexisting rules.
90
REDFERN & HUNTER, supra note 1, at 53.
88
432
[Vol. 25
Chart BB. Experience as Arbitrator under Non-Administered Rules

Q: Have you served as an arbitrator under non-administered
arbitration rules (such as, for example, those of CPR or UNCITRAL)?
Yes
80.9%
(106)
No
19.1%
(25)
The 106 respondents who indicated they had served as an arbitrator under
non-administered rules were then asked to compare the overall cost and time to
complete proceedings of administered versus non-administered arbitrations, as
shown in Chart CC.
2014]
433
Chart CC. Cost and Time of Administered vs.

Non-Administered Arbitrations
Q: For those instances where you have served as an arbitrator under
non-administered arbitration rules, how did those arbitrations compare to
administered arbitrations in terms of overall cost and time to complete
proceedings?
75%
67.0%
(71)
70%
65%
57.5%
(61)
60%
55%
50%
45%
40%
35%
27.4%
(29)
30%
19.8%
(21)
25%
20%
7.5%
15%
10%
5%
0%
0.0% 0.0%
(0)
(0)
Much greater
5.7% (8)
(6)
4.7%
(5)
4.7%
(5)
4.7%
(5) 0.9%
(1)
Greater
About the same
Overall cost
Less
Much less
Don't know
Time to complete proceedings
Chart CC reveals a pattern of responses quite similar to that of Chart AA,

above, showing responses when respondents were asked about the relative cost
and cycle time of ad hoc proceedings. Interestingly, however, a higher percentage
of respondents view the expense and cycle time of arbitration under published
non-administered rules as about the same as administered arbitration.
When asked, What do you think caused the differences in cost and length of
proceedings, if any, between non-administered and administered arbitrations?91
33 individuals, or 33.1% of those responding, indicated the cost and the duration
of administered and non-administered arbitrations were the same or about the
same. Smaller numbers stated that non-administered arbitration proceedings took
less time due to lack of administrative delays, including case managers,
91
Where a response was sufficiently clear and unambiguous it was grouped into one
or more appropriate categories.
434
[Vol. 25
administrators, and middle m[e]n92 (18 individuals, or 17.0%); that nonadministered proceedings cost less due to the lack of administration fees
(16 individuals, or 15.1%);93 and that not using an administrative body reduces
process length by improving communications between parties and arbitrators, and
between the parties themselves (eight individuals, or 7.5%).94
Respondents contrasting opinions reflect disagreement regarding the nature
and value of administrative bodies roles in arbitration processes. One participant
stated, I dont think administration adds much value unless there is a problem,
while others perceived a need for administrative institutions, especially when it
came to the handling of arbitrator compensation.
G. Streamlined or Fast Track Arbitration
Recent concerns regarding the perceived mounting expense and length of
commercial arbitration have prompted a good deal of discussion about the utility
92
Responses indicating perceptions that non-administered arbitrations were

completed more quickly than administered proceedings included the statements, I can
convene more quickly than any service provider and time is saved through [a]ggressive
scheduling by arbitrator[s]. As one commenter sarcastically put it, [C]ommitted
arbitrators can move things along without adult supervision.
93
Responses indicating perceptions that non-administered arbitrations were
completed less expensively than administered proceedings included the statements, I
believe admin[ist]ering inst[itu]tions . . . charge excessive fees, [a]dministered
arbitrations have a high layer of administrative cost not typically justified by the services
delivered by an administering body, and [t]he . . . difference in increased cost is for
those ADR providers who charge significant upfront fees for administration that do not
include fees of the panel or have any real connection to the actual cost of administering the
case. In contrast, one respondent wrote, Someone still has to administer the case and in
non-administered case[s] it is an arbitrator at a higher hourly rate. While indicating their
opinion that administrative fees add to arbitration cost, one respondent echoed others
sentiments of nevertheless wanting to avoid conflict regarding their compensation. (Fees
of the provider organization increased the cost to the parties of administered arbitration; I
prefer administered arbitration so that I do not need to involve myself in collecting
deposits and arbitrator fees.).
94
One respondent commented, I believe speed arises in these cases since the parties
are working together better, [proceedings are faster due to] improved communication
between parties, speed is increased through [d]irect communication with
repres[en]tatives of the parties, and arbitrators have [m]ore involvement in logistical
determinations, coaching the parties. Another participant wrote that non-administered
arbitrations [s]eemed to be more efficient. All matters came directly to me as the
arbitrator instead first to the case manager and then to me. I have found that some case
managers do not handle matters immediately. I am sure that it is because they have a large
docket. In contrast to these statements, one respondent commented that [w]ithout an
administrative body there are inevitable problems in dealing with the parties, particularly
the conflicts around payment of arbitrator comp[ensation], while another respondent
warned that I think this [non-administered arbitration] only works for experienced
arbitrators . . . .
2014]
435
of streamlined, expedited, or fast-track arbitration procedures.95 As shown

in Chart DD, approximately three-quarters of respondents (76.3%) indicated
having arbitrated using such procedures.
Chart DD. Experience as Arbitrator in Streamlined /
Fast Track Arbitration
Q: Have you served as an arbitrator in a case under streamlined
or fast track arbitration procedures?
Yes
76.3%
(100)
No
23.7%
(31)
Those respondents who claimed experience with streamlined or fast-track

procedures were then asked to indicate the ranges of amounts in dispute for which
they had conducted such procedures. Chart EE reflects the total percentage of the
respondent pool that indicated having arbitrated cases within various ranges of
amounts in dispute.
95
See PROTOCOLS FOR EXPEDITIOUS, COST-EFFECTIVE COMMERCIAL ARBITRATION:

KEY ACTION STEPS FOR BUSINESS USERS, COUNSEL, ARBITRATORS & ARBITRATION
PROVIDER INSTITUTIONS 43 (Thomas J. Stipanowich et al. eds., 2010) [hereinafter CCA
PROTOCOLS]. See Stipanowich, Reflections, supra note 1, at 346-47.
436
[Vol. 25
Chart EE. Experience as Arbitrator in Streamlined /

Fast Track Arbitration
Q: Have you served as an arbitrator in a case under streamlined
or fast track procedures involving disputes . . .
Because widely used commercial arbitration fast-track rules are aimed at

cases of relatively low value,96 it is not surprising that the greatest body of
experience among respondents was in cases involving less than $100,000 and,
secondarily, to cases involving between $100,000 and $499,000. However, a
sizable minority of respondents have experience with streamlined procedures in
large cases, including some in excess of $50 million. This latter body of
experience should be carefully examined in order to assess possible opportunities
for more expansive use of fast track or streamlined procedures.97
H. Baseball or Final Offer Arbitration
In final offer arbitration, the arbitrators award must be equal to one or the
other of the final offers submitted by the parties.98 Among the variants of this
procedure is the approach utilized to resolve salary disputes in Major League
Baseball.99 Besides potentially offering a quick, informal, final and binding
96
See, e.g., AAA, COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES,

Expedited Rule E-2 (If an increased claim or counterclaim exceeds $75,000, the case will
be administered under the regular procedures unless all parties and the arbitrator agree that
the case may continue to be processed under the Expedited Procedures).
97
See Stipanowich, Reflections, supra note 1, at 346-47.
98
Benjamin A. Tulis, Final Offer Baseball Arbitration: Contexts, Mechanics and
Applications, 20 SETON HALL J. OF SPORTS & ENTER. L. 86 (2010).
99
RESOLVING DISPUTES, supra note 17, at 598.
2014]
437
resolution,100 and hedging risks for both parties,101 final offer arbitration may also
stimulate informal settlements by encouraging parties to make more perceptibly
reasonable offers.102 As reflected in Chart FF, not quite a third of Survey
respondents claimed experience with some form of final offer arbitration.
Chart FF. Experience with Baseball / Final Offer Procedures
Q: Have you served as an arbitrator in a case under baseball or
final offer procedures, where you were called upon to render an award
of an amount equal to one or the other parties final offers?
Yes
32.1%
(42)
No
67.9%
(89)
I.
Bracketed Awards
Another method of curbing risks in arbitration is a bracketed award. This

approach involves the setting of pre-determined upper and lower limits for an
award of damages.103 If the arbitrator renders an award between the limits, it is
enforceable in the amount rendered. An award above the agreed range is
enforceable at the upper limit set by agreement; an award below the agreed range
is enforceable at the lower limit. As shown in Chart GG, only a small minority of
respondents (13.7%) claim experience as arbitrators with bracketed awards.104
100
Tulis, supra note 98, at 92.

Michael Carrell & Richard Bales, Considering Final Offer Arbitration to Resolve
Public Sector Impasses in Times of Concession Bargaining, 28 OHIO ST. J. ON DISP.
RESOL. 1, 31 (2013).
102
Id.
103
RESOLVING DISPUTES, supra note 17, at 599.
104
It should be noted, however, that it is possible for parties to agree to upper and
lower limits for enforcement of an arbitral award even if the arbitrator is unaware of the
arrangement. Indeed, they may prefer to keep the arbitrator in the dark so as not to
influence the latters award. See id. and accompanying Teachers Manual 161 (2d ed.
2010).
101
438
[Vol. 25
Chart GG. Experience Rendering Awards within Pre-Determined Ranges

Q: Have you served as an arbitrator in a case in which you were required
to render an award within a certain dollar range (such as, for
example, $500,000 to $1 million)?
Yes
13.7%
(18)
No
86.3%
(113)
J. Emergency Arbitration
Growing attention has been given to emergency measures of protection
for the preservation of assets, the conservation of goods, the sale of perishable
goods, and the like.105 Leading international and U.S. domestic arbitration
procedures now include such mechanisms in their commercial procedures.106 As
indicated in Chart HH, more than a third of Survey respondents claim experience
as an arbitrator under procedures for interim/emergency measures of protection.
The experience of such arbitrators may be of guidance in the continuing
development of interim and emergency procedures.
105
See generally Mark Kantor, Comparing Expedited Emergency Relief under the
AAA/ICDR, ICC and LCIA Arbitration Rules, 24 ALTERNATIVES TO HIGH COST LITIG. 136
(2006). See also Martin Davies, Court-Ordered Interim Measures in Aid of International
Commercial Arbitration, 17 AM. REV. INTL ARB. 299, 299 (2006).
106
See, e.g., AAA COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES,
R. 38 Emergency Measures of Protection; ICDR INTERNATIONAL RULES, Art. 24
(effective June 1, 2014); ICC ARBITRATION RULES 2012, Appendix V. Emergency
Arbitrator Rules (effective Jan. 1, 2012); HKIAC ADMINISTERED ARBITRATION RULES 2013,
Schedule 4 Emergency Arbitrator Procedures (effective Nov. 1, 2013); JAMS,
INTERNATIONAL ARBITRATION RULES 2011, Art. 26 Interim Measures of Protection
(effective Aug. 1, 2011). See also Gary B. Born & Sabrina Lee, The Emergency Arbitrator
Procedures Under the New HKIAC Rules, ASIAN DISP. REV. 116 (Oct. 2013) (comparing
HKIAC Emergency Arbitrator Procedures to some other emergency procedures).
2014]
439
Chart HH. Experience with Interim/Emergency Protective Measures

Q: Have you served as an arbitrator under procedures for interim / emergency
measures of protection (such as, for example, the AAA Optional Rules for
Emergency Measures of Protection or similar procedures for the preservation of
assets, the conservation of goods, the sale of perishable goods, etc.)?
Yes
36.6%
(48)
No
63.4%
(83)
K. Multi-Disciplinary Panels
An important, often overlooked aspect of arbitration practice is the value of
tribunals comprised of arbitrators who come from varying professional and
experiential backgrounds, including non-legal backgrounds. The antecedents of
modern arbitration practice include merchant and professional guilds that resolved
disputes utilizing the expertise of their members.107 As Soia Mentschikoff, who
studied commercial arbitration in the mid-twentieth century, noted, merchant
arbitrators were more likely to be informed regarding commercial fact-finding
norms than a judge or jury.108
Today, however, as arbitration is increasingly approached as an arena of
professional practice, lawyers appear to be dominating the arbitrator ranks109 a
reality starkly illustrated by the backgrounds of Survey respondents (Chart C
above). Anecdotal experience indicates that currently many arbitration tribunals
are comprised solely of individuals of legal background.
The Survey sought information regarding subjects experiences with, and
perspectives on, arbitrators with non-legal backgrounds. As depicted in Chart II,
107
Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 U.

TORONTO L.J. 265, 267 (2003).
108
Soia Mentschikoff, Commercial Arbitration, 61 COLUM. L. REV. 846, 868 (1961).
109
See supra Part II.C.
440
[Vol. 25
over four-fifths (84.5%) of respondents indicated that they had previously served
with non-lawyer arbitrators on at least one arbitration panel.
Chart II. Experience as Arbitrator with Non-Lawyer Panelists
Q: Have you ever served on an arbitration tribunal
that included an arbitrator who was a non-lawyer?
Yes
84.5%
(109)
No
15.5%
(20)
The respondents who had co-arbitrated with non-lawyer arbitrators110 were

asked what percentage of previous arbitration tribunals on which they had served
included non-lawyers, as shown in Chart JJ below.
110
Of the 109 respondents asked this and all subsequent questions pertaining to
experiences with non-lawyer arbitrators and the practice of non-lawyer arbitrators, 108
individuals answered each question and one individual answered none of the questions.
Thus, data for this and each of the remaining questions in this section on multi-disciplinary
panels reflect response pools of 108 subjects.
2014]
441
Chart JJ. Percentage of Tribunals with Non-Lawyer Arbitrators

Q: Approximately what percentage of the arbitration tribunals on
which you have served have included an arbitrator who is a non-lawyer?
1.9% (2)
1.9% (2)
More than 50%
0.9% (1)
Percentage of Cases
41% to 50%
0.9% (1)
4.6% (5)
31% to 40%
3.7% (4)
9.3% (10)
21% to 30%
2.8% (3)
8.3% (9)
11% to 20%
8.3% (9)
66.7% (72)
1% to 10%
53.7% (58)
8.3% (9)
0%
28.7% (31)
0%
10%
20%
30%
40%
50%
60%
70%
Percentage of Tribunals
Previous 5 Years
The foregoing data suggest that respondents collectively have relatively little
experience with multidisciplinary tribunals, and that in recent years the relative
usage of tribunals involving non-lawyer arbitrators is diminishing.111
The same respondents were asked to identify the types of disputes they had
co-arbitrated with non-lawyer arbitrators, as shown in Chart KK. The list is
dominated by construction and securities/brokerage disputes, both well-known
arenas for multi-disciplinary panels.112
111
The concerns associated with the reduced usage of multi-disciplinary tribunals are
discussed in Stipanowich, Reflections, supra note 1, at 366-68.
112
Those respondents who selected Other were asked, What types of disputes do
you consider to be in the Other category? Eighteen individuals answered the question,
and within that small sample the most common responses referenced cases involving
corporate valuation (three individuals, or 16.7% of the respondent pool); other accounting
442
[Vol. 25
Chart KK. Types of Disputes with Non-Lawyers

Q: In what types of disputes have you served on an arbitration tribunal
that included an arbitrator who was a non-lawyer? Please select all that apply.
Construction
60.2% (65)
Contracts
29.6% (32)
Securities/Brokerage
25.9% (28)
Real Estate
10.2% (11)
Insurance/Reinsurance
9.3% (10)
Employment
9.3% (10)
Energy/Utilities
7.4% (8)
Franchise
7.4% (8)
Labor Relations
5.6% (6)
Consumer
5.6% (6)
Intellectual Property
5.6% (6)
Technology
4.6% (5)
Malpractice
2.8% (3)
Entertainment
2.8% (3)
Health Care
2.8% (3)
1.9% (2)
Medical
16.7% (18)
Other
0%
10%
20%
30%
40%
50%
60%
70%
All respondents who had previously arbitrated with non-lawyer arbitrators

were also given the opportunity to respond to the open-ended prompt, What were
the professional backgrounds of the non-lawyers with whom you have served, and
how did their backgrounds vary dependent upon the type of dispute, if at all?
The results are portrayed in Chart LL.
issues (three individuals, or 16.7%); disputes over attorney fees (two individuals, or
11.1%); transportation and shipping disputes (two individuals, or 11.1%); and one case
(5.6%) each involving personal injury, investment treaties, M&A, banking, and
professional sports.
2014]
443
Chart LL. Professional Backgrounds of Non-Lawyers

Q: In what types of disputes have you served on an arbitration tribunal
that included an arbitrator who was a non-lawyer? Please select all that apply.
Engineers
38 (35.2%)
Accountants
32 (29.6%)
Architects
30 (27.8%)
Construction Contractors
20 (18.5%)
18 (16.7%)
Brokers/Securities Specialists
Executives/Business Managers
17 (15.7%)
Insurance Appraisers/Adjusters
8 (7.4%)
Scientists/Technical Specialists
5 (4.6%)
Construction Project Managers
5 (4.6%)
Real Estate Developers
4 (3.7%)
Medical Doctors
4 (3.7%)
Other
15 (13.9%)
0%
5%
10%
15%
20%
25%
30%
35%
40%
The presence of engineers, architects, construction contractors, and project

managers on the list attests to the tradition of multi-disciplinary panels for
construction disputes. However, accountants, brokers/securities specialists, and
business executives/managers are also conspicuous. 113
113
The 15 responses categorized in the Other category included backgrounds in
building (two individuals, or 1.9% of the total respondent pool), labor-relations/union
representatives (two individuals), (U.S.) federal code compliance energy and trade
sectors (two individuals), maritime trade (one individual, or 0.9%), railroad (one
individual), port management (one), county judge - non-lawyer (one), law enforcement
(one), teaching (one), human resources (one), and economics (one).
444
[Vol. 25
Finally, the same respondents were queried regarding their perceptions of nonlawyer arbitrators. As indicated in Table 2 below, nearly all respondents perceived
that, at least sometimes, [n]on-lawyer arbitrators expertise is a necessary
complement to lawyer expertise and that non-lawyer arbitrators may be able to
probe some factual questions more effectively. At the same time, however, more
than 40% (41.7%) of respondents believed arbitrators usually (if not always) need
legal expertise in order to serve effectively, and almost 60% (58.3%) believed nonlawyer arbitrators never make effective chairs of arbitration panels.
Table 2. Perceptions Regarding Non-Lawyer Arbitrators
Q: Based on your experience serving with non-lawyer arbitrators,
please indicate how often each of the following occurs.
Non-lawyer arbitrators expertise is

a necessary complement to lawyer
expertise.
Non-lawyer arbitrators are less
concerned than lawyer arbitrators
about rendering awards that comply
with applicable law.
Non-lawyer arbitrators are able to
probe some factual questions more
effectively than lawyer arbitrators.
Arbitrators need legal experience in
order to serve effectively.
Non-lawyer arbitrators make
effective chairs of arbitration
tribunals.
Always Usually
About half
Sometimes Never
the time
3.7%
(4)
18.5%
(20)
10.2%
(11)
63.0%
(68)
4.6%
(5)
2.8%
(3)
16.7%
(18)
8.3%
(9)
52.8%
(57)
19.4%
(21)
3.7%
(4)
14.8%
(16)
10.2%
(11)
63.9%
(69)
7.4%
(8)
5.6%
(6)
36.1%
(39)
9.3%
(10)
42.6%
(46)
6.5%
(7)
0.0%
(0)
1.9%
(2)
2.8%
(3)
37.0%
(40)
58.3%
(63)
The foregoing data raise important questions regarding the makeup of

arbitration panels and the role of non-lawyer arbitrators. Ideally, such issues
should be brought to the attention of the business users and others whose interests
are affected by arbitration in various settings.
IV. PRE-HEARING MANAGEMENT
One of the most important developments in commercial arbitration in recent
decades is the increased emphasis on pre-hearing process, particularly information
exchange (or, in U.S. parlance, discovery) and motion practice.114 This enhanced
114
See generally Stipanowich, New Litigation, supra note 41, at 12; CCA
PROTOCOLS, supra note 95, at 5-8. See also Neal M. Eiseman et al., A Tale of Two
Lawyers: How Arbitrators and Advocates Can Avoid the Dangerous Convergence of
Arbitration and Litigation, 14 CARDOZO J. CONFLICT RESOL. 683, 701 (2013).
2014]
445
focus on the pre-hearing stage has presented new challenges for arbitrators as
process managers.115 In recognition of these developments, the CCA/Straus
Institute Survey placed considerable emphasis on subjects pre-hearing management
activities.
A. Tailoring Arbitration Procedures
As a creature of contract, arbitration is an engine of choice.116 The choicemaking opportunities afforded by arbitration hinge on many factors; aside from
the selection of arbitrators, no element of choice may be as important as the ability
of the parties, guided or facilitated by the arbitrator(s), to flesh out a procedural
framework for arbitration that is suited to the circumstances, including the
characteristics of the disputes and the requirements of the parties.117 It is therefore
not surprising that nearly all respondents answered affirmatively when asked if
they had worked with parties to tailor arbitration procedures to better suit the
needs of the parties and the nature of the dispute, as shown in Chart MM.
Chart MM. Experience Tailoring Arbitration Procedures
Q: As an arbitrator, have you worked with parties to tailor arbitration
procedures to better suit the needs of the parties and the nature of the dispute
(such as, for example, modifying discovery procedures, or adjusting deadlines)?
Yes
96.1%
(124)
No
3.9%
(5)
All 124 respondents who answered Yes were given the opportunity to write
a short answer offering examples of how they helped tailor proceedings as an
115
See CCA PROTOCOLS, supra note 95, at 69-72; Eiseman, supra note 114, at 701.
BORN, supra note 3, at 2; Stipanowich, Reflections, supra note 1, at 308, 314-21.
117
David Brown, What Steps Should Arbitrators Take to Limit the Cost of
Arbitration?, 31(4) J. INTL ARB. 499 (2014).
116
446
[Vol. 25
arbitrator; 114 offered examples, all of which are summarized by category in

Chart NN.118
Chart NN. Experience Tailoring Arbitration Procedures
Q: If you can, please provide some specific examples of how
you have worked with parties to tailor arbitration procedures:
Discovery practice
66.7% (76)
Evidentiary hearing
management
41.2% (47)
Procedural logistics
35.1% (40)
Pre-hearing
conferences
Resolution / narrowing
of issues
Motion practice,
generally
14.9% (17)
14.9% (17)
13.2% (15)
Bifurcation
13.2% (15)
Dispositive motions
11.4% (13)
0%
10%
20%
30%
40%
50%
60%
70%
Leading arbitration procedures now place great emphasis on planning

conferences (variously referred to as pre-hearing conferences, preliminary
hearings and other variants), and respondents made a number of references to
conducting such conferences to create a tailored framework for the process.119
118
For the purposes of this analysis, a single response might fall under several
categories or headings of tailoring activity. As an example, if a respondent indicated
that he/she often holds pre-hearing conferences for the purpose of limiting issues to be
proven, to assess for him/herself how he/she is going to oversee the discovery process, and
to begin searching for ways by which parties might informally address disagreements, the
authors counted the response under four discrete headings.
119
Respondents variably referred to such meetings as preliminary hearings, prehearing conferences, and other, similar phrases corresponding to the terminology used by
various arbitration provider organizations. In all cases the intent of the meeting was to
becoming familiar with the parties, the parties needs, and the particulars of the dispute,
and thereby to determine ways by which to expedite and otherwise tailor the arbitration
proceeding. One respondent noted that [i]t does not always work, however, and litigation
counsel often wish to proceed with the kinds of litigation procedures with which they are
comfortable.
2014]
447
More than a third of respondents (35.1%) made reference to modifying

procedural timetables, schedules, and other hearing logistics.120 More than twothirds (66.7%) reported working with parties to tailor and limit discovery
processes.121 Some (14.9%) indicated that they actively promoted informal
resolution or narrowing of issues to be addressed.122 Some (11.4%) used dispositive
motions to resolve issues that may have otherwise unnecessarily lengthened
proceedings,123 while some (13.2%) placed limits on motion practice.124
Another two-fifths of respondents (41.2%) said they helped tailor evidentiary
hearings and methods of introducing evidence,125 including various activities
associated with witness testimony (29.8%).126 Some (13.2%) reported having
120
Participants gave many examples of how they worked with parties to modify or
facilitate procedural timetables, including many such efforts that went far beyond simply
allowing for conflicting schedules and extending or compressing deadlines, such as
[allowing for the usage of] closing statements in lieu of post-hearing briefs; working
with parties to streamline the hearings by stipulations; and, in larger cases, holding
regular status conferences . . . to keep things moving.
121
For a more detailed summary see infra Part IV.C.
122
These include, for example, [g]rant[ing] delays [to facilitate] . . . settlement
negotiations; [a]ddressing first certain issues of law (or limited fact development) that
have the potential to narrow or dispose of the case; [w]henever a disagreement arises,
[instructing] the parties immediately to schedule a conference call with the Panel so it can
be resolved without jeopardizing the hearing date(s), including, in particular, tight
supervision on the discovery process and promptly held informal hearings to resolve
discovery issues.
123
See infra Part IV.B.
124
See id.
125
Respondents indicated they have done so by [a]ccepting all exhibits into evidence
at the outset except for specific isolated documents that are objected to; allowing for site
visits and on-site hearings; encouraging parties to provid[e] exhibits in electronic form
(rather than hard copies in notebooks); and attempting to persuade parties to adopt
arbitration style evidentiary rules to save time at the hearing.
126
This includes, for example, limiting the number of witnesses at evidentiary
hearing; [e]nsuring that each witness testifies only once, even if there are
counterclaims; moving the seat of the arbitration without waivers of governing
procedural law to accom[m]odate witness and party travel and availability [and doing the]
same with convening hearings elsewhere to receive testimony of non-party witnesses
under subpoena that could not be compelled in discovery; and allowing declarations or
witness statements in lieu of direct testimony. Six respondents specifically mentioned
using chess clock-style time limits on the presentation of evidence to limit hearing
length. Another mentioned tellin[g] counsel to move on after I understand the point they
are making ad na[u]s[ea]m and by having counsel point out to me the contract clauses
they are relying instead of torturing a witness through a contract. Others spoke of
facilitating subpoenas of important witnesses; being flexible with the order of
presentation of witnesses; and hearing witnesses via Skype, by video-conference or
even, where appropriate, by phone.
Expert testimony was the focus of a number of comments. Respondents made
reference to, for example, appointment of [a] neutral [expert] by the arbitrator to avoid
448
[Vol. 25
bifurcated proceedings for various purposes.127 A few respondents tailored

proceedings through case consolidation and the organization of class certification
and notification processes.128
Respondents accompanying written comments portrayed a variety of
approaches including directive as well as collaborative strategies. While
respondents were asked how they worked with parties to tailor arbitration
procedures . . . 28 individuals (24.6% of respondents)129 wrote answers focused
at least partially, if not entirely, on what they require or expect of parties, and
their arbitral prerogative regarding the management of procedures: I try to
eliminate the tendency for a motion practice. I limit or eliminate broad
discovery, and require exchange of information and documents. I set
consecutive hearing dates and stick with them.
B. Dispositive Motions
In recent years growing emphasis has been placed on the handling of
dispositive motions in commercial arbitration.130 Respondents comments stress
dueling experts; having experts on a particular topic testify in each others presence
and having expert panels (sometimes referred to as hot tubbing); and holding separate
expert meetings where key issues are discussed in the course of preparing their reports.
127
Survey participants indicated multiple ways by which they have bifurcated issues
under consideration, including bifurcating hearings between merits and quantum;
bifurcate[ing] key issue[s] (e.g., trademark and ownership); and bifurcat[ing]
proceedings to deal with potentially dispositive motions and otherwise to advance
resolution of key issues. One respondent noted that they only very occasionally
bifurcate, and that when they do so they time that decision so they can obtain a detailed
damages analysis early enough to allow reparation but late enough to allow development
of the case.
128
One respondent commented that they worked with parties regarding the
consolidation of cases by submission in absence of [a] provision in [the] arbitration
clause or applicable rules and another indicated that, while not necessarily involving
parties in a collaborative process, they have previously develop[ed] a claims matrix to
evaluate large number of claims and thereby streamline the process.
129
One respondent commented, I use the first preliminary hearing to seek a
collaborative discussion about tailoring the process to fit the dispute. It does not always
work, however, and litigation counsel often wish to proceed with the kinds of litigation
procedures with which they are comfortable.
130
See CCA PROTOCOLS, supra note 95, at 8-9, 36-37; Adam Raviv, No More
ExcusesToward a Workable System of Dispositive Motions in International Arbitration,
28 ARB. INTL 487, 488 (2012).
It is critical to note, however, that the handling of dispositive motions may be viewed
through a very different lens if one is focused on their use in the context of, for example,
arbitration of disputes between an employee and a company. In such contexts, early
disposition may make less sense and actually do harm if at the time of a motion the
employee is hindered by lack of access to documents or other evidence respecting an
employment discrimination claim, or civil rights or antitrust claims. See Nancy Welsh, I
Could Have Been A Contender: Summary Jury Trial as a Means to Overcome Iqbals
2014]
449
two leading themes: the role dispositive motions may play in resolving issues that
might otherwise unnecessarily lengthen proceedings (11.4%),131 and concerns
about placing appropriate limits on motion practice (13.2%).132
As reflected in Table 3, responses to the CCA-Straus Institute Survey suggest
that most experienced arbitrators are making efforts to effectively manage motion
practice and not to decline the opportunity to come to grips with opportunities to
resolve all or part of the case in a summary fashion, early on. Many arbitrators also
appear to be taking steps to avoid abuse in the filing of motions by requiring moving
parties to show there will be a net savings in arbitration time, cost, or both.
Table 3. Handling of Dispositive Motions
Q: As an arbitrator, how often do you do the following
in handling motions for summary disposition?
I readily and promptly rule on

motions for summary disposition of
issues.
I decline to rule on motions for
summary disposition of issues,
deferring such matters until a
hearing on the merits of the case.
I require, before the filing of any
motion for summary disposition of
issues, a showing by the moving
party that the motion has a
reasonable likelihood of being
granted.
I require, before the filing of any
motion for summary disposition of
issues, a showing by the moving
Always Usually
About half
Sometimes Never
the time
43.8%
(56)
28.9%
(37)
4.7%
(6)
18.8%
(24)
3.9%
(5)
0.8%
(1)
14.1%
(18)
2.3%
(3)
47.7%
(61)
35.2%
(45)
18.0%
(23)
26.6%
(34)
6.3%
(8)
16.4%
(21)
32.8%
(42)
18.0%
(23)
18.0%
(23)
3.9%
(5)
21.1%
(27)
39.1%
(50)
Negative Effects upon Pre-Litigation Communication, Negotiation and Early, Consensual

Dispute Resolution, 114 PENN. ST. L. REV. 1149 (2010). Thanks to Professor Welsh for
encouraging the inclusion of this strong caveat!
131
For example, one subject noted that they [a]gree[d] to hear summary judgment
motions that both parties agreed might hasten resolution of entire dispute. Another
commented that they [r]educ[ed] the amount of time for hearing[s] on [m]otions for
[s]ummary [j]udgment, thereby shortening proceedings.
132
Many respondents commented that they have limited or eliminated motion
practice, for instance by requiring that [n]o one can make a motion without first
obtaining permission of the Panel and only sometimes [allowing] motions regarding
discovery or admission of evidence. It is important to also note that here, as with
respondents commentary regarding discovery management, some respondents may have
interpreted this question as effectively asking how they manage or limit arbitral motion
practice independent of any cooperative process with parties.
450
party that the result will be a net

savings in arbitration time and/or
costs.
I entertain motions for summary
disposition of issues only where
they present a realistic possibility of
shortening, streamlining or focusing
the arbitration.
28.9%
(37)
42.2%
(54)
4.7%
(6)
13.3%
(17)
[Vol. 25
10.9%
(14)
C. Management of Discovery
As in litigation, pre-hearing discovery is widely regarded as the chief
contributor to cost and time in U.S. arbitration.133 Considerable stress has been
placed on the need for parties and arbitrators to make more deliberate efforts to
manage discovery where efficiency and economy are important party priorities.134
Table 4 reflects a wide array of data respecting arbitrator approaches to
discovery. It reveals that a majority (54.7%) of the experienced arbitrators in the
Survey purported, either usually or always, not to concern themselves with
discovery unless one or both parties requested their involvement. On the other
hand, large majorities either usually or always encourage parties to place limits
on the scope of discovery (93.8%); point out to parties the costs of using courtlike discovery in arbitration (78.9%); and discourage . . . discovery [based] on
the Federal Rules of Civil Procedure or similar procedures (75.0%).
The great majority (90.7%) also either usually or always work with counsel to
limit or streamline discovery. In accompanying comments respondents reported
various ways by which they have worked with parties to encourage informal,
voluntary exchange of information or tailor discovery to specific needs. They
sometimes accomplished the latter by having the parties elaborate their claims or
defenses or otherwise narrow the issues.135
The comments suggested that, again, some arbitrators may be much more
directive than others when it comes to discovery limits. Some spoke in terms of
[p]ersuading parties to vary from arbitration agreements which called for broad
discovery rights and strict rules of evidence to limit discovery substantially, or
discouraging interrogatories. Others apparently applied stronger measures,
such as requiring counsel to defend the number of depositions and requir[ing]
them to be curtailed.
133
See CCA PROTOCOLS, supra note 95, at 6-8. See also Giacomo Rojas Elgueta,
Understanding Discovery in International Commercial Arbitration through Behavioral
Law and Economics: A Journey Inside the Minds of Parties and Arbitrators, 16 HARV.
NEGOTIATION L. REV. 165, 181 (2011); Stipanowich, Reflections, supra note 1, at 341-42.
134
Stipanowich, Reflections, supra note 1, at 341-42.
135
In the words of one respondent, When parties suggest extensive discovery, I
explore with them what their real needs are and suggest limitation on the scope and extent
of discovery.
2014]
451
A majority of respondents (64.1%) also claimed, either usually or always, to

actively monitor discovery and remain attuned to discovery issues. While
virtually all (98.5%) purported to respond promptly to party motions regarding
discovery, there was also heavy emphasis (85.9%) on first trying to work things
out informally, perhaps through a conference call. A majority (60.9%) would
usually or always mediate discovery disputes before rendering an order.136
Table 4. Discovery Management
with respect to discovery in arbitration?
I do not involve myself in discovery

unless one or both parties request
my involvement.
I try to discourage arbitrating parties
from basing their discovery on the
Federal Rules of Civil Procedure or
similar procedures.
I encourage parties to place limits
on the scope of discovery.
I point out to parties the costs of
using court-like discovery in
arbitration.
I work with counsel to limit or
streamline discovery.
I attempt to mediate disputes over
discovery before rendering orders
regarding discovery.
When discovery issues arise, I first
try to address the issues informally
(such as, for example, through a
conference call in which the parties
positions are explored).
I respond promptly to party motions
regarding discovery.
I actively monitor discovery and
remain attuned to potential
discovery issues.
Always Usually
About half
Sometimes Never
the time
10.9%
(14)
43.8%
(56)
7.8%
(10)
20.3%
(26)
17.2%
(22)
44.5%
(57)
30.5%
(39)
3.1%
(4)
17.2%
(22)
4.7%
(6)
64.1%
(82)
29.7%
(38)
2.3%
(3)
3.9%
(5)
0.0%
(0)
43.0%
(55)
35.9%
(46)
4.7%
(6)
12.5%
(16)
3.9%
(5)
59.4%
(76)
31.3%
(40)
6.3%
(8)
3.1%
(4)
0.0%
(0)
24.2%
(31)
36.7%
(47)
2.3%
(3)
29.7%
(38)
7.0%
(9)
49.2%
(63)
36.7%
(47)
3.9%
(5)
9.4%
(12)
0.8%
(1)
84.4%
(108)
14.1%
(18)
0.8%
(1)
0.8%
(1)
0.0%
(0)
37.5%
(48)
26.6%
(34)
7.8%
(10)
23.4%
(30)
4.7%
(6)
One response stated, Whenever a disagreement arises, the parties are instructed
immediately to schedule a conference call with the Panel so it can be resolved without
jeopardizing the hearing date(s). Another respondent commented that the panel chair will
sometimes be designated as discovery master.
136
452
[Vol. 25
V. HEARING MANAGEMENT
Along with discovery and motion practice, effective management of
arbitration hearings is a key challenge for arbitrators seeking to promote speed,
efficiency and economy in proceedings.137 An extensive series of Survey queries
sought information about experienced arbitrators use of a wide variety of
approaches to managing arbitration hearings. The questions were based on a
variety of major steps proposed by the Commentary accompanying the CCA
Protocols for Expeditious, Cost-Effective Arbitration.138
The results are
summarized in Table 5.
Table 5. Hearing Management
with respect to arbitration hearings?
I urge counsel to focus on the

probativeness of evidence and not its
admissibility.
I receive virtually all non-privileged
evidence, and discourage traditional
objections (hearsay, foundation,
etc.).
I work with counsel to establish an
order of proof that is most
appropriate for that particular case.
I require parties to submit a joint
collection of core exhibits.
I require parties to submit tabbed,
indexed exhibits in advance of the
hearing, and advise counsel that all
such exhibits will be received en
masse at the start of the hearing
unless privileged or genuinely
challenged as to authenticity.
I require that parties show
demonstrative exhibits to each other
a reasonable time before their use in
hearing.
137
Always
Usually
About
half
Sometimes Never
the
time
25.8%
(33)
39.8%
(51)
6.3%
(8)
19.5%
(25)
8.6%
(11)
26.6%
(34)
48.4%
(62)
6.3%
(8)
15.6%
(20)
3.1%
(4)
25.0%
(32)
39.8%
(51)
4.7%
(6)
21.9%
(28)
8.6%
(11)
39.1%
(50)
37.5%
(48)
7.8%
(10)
9.4%
(12)
6.3%
(8)
53.1%
(68)
31.3%
(40)
2.3%
(3)
7.8%
(10)
5.5%
(7)
46.9%
(60)
31.3%
(40)
6.3%
(8)
10.9%
(14)
4.7%
(6)
See CCA PROTOCOLS, supra note 95, at 9-10 (too-lengthy hearings identified as
one of the reasons arbitration often fails to meet the desires of business users for speed,
efficiency and economy).
138
See id. at 75-76.
2014]
453
I ask counsel to consider the use of

written direct testimony for
witnesses.
I establish procedures to narrow and
highlight matters on which opposing
experts disagree.
I require experts to confer before the
hearing and provide arbitrators with
lists of the points on which they
agree or disagree.
I try to limit the presentation of
duplicative or cumulative testimony.
I accept affidavits or pre-recorded
testimony regarding less critical
matters.
I establish and maintain a realistic
daily schedule for the hearing.
I encourage parties to employ a
chess clock that limits the total
number of hours available to counsel
for examination and argumentation.
At some point during each hearing
day, I discuss with counsel any
administrative matters that need
attention.
At the close of each hearing day, I
confirm plans and explanations for
the following day(s).
I tell counsel when a point has been
understood and they can move on, or
when a point was not understood and
requires clarification.
I make sure that, well prior to the
hearing, counsel work out all
logistical arrangements (such as, for
example, transcripts, shared
projection equipment, etc.).
I take witnesses out of turn when
necessary.
I tell parties that they are prohibited
from running out of witnesses on
any given day.
13.3%
(17)
28.1%
(36)
8.6%
(11)
35.2%
(45)
14.8%
(19)
10.9%
(14)
38.3%
(49)
11.7%
(15)
28.9%
(37)
10.2%
(13)
1.6%
(2)
8.6%
(11)
10.9%
(14)
40.6%
(52)
38.3%
(49)
47.7%
(61)
41.4%
(53)
2.3%
(3)
7.8%
(10)
0.8%
(1)
22.7%
(29)
39.8%
(51)
4.7%
(6)
29.7%
(38)
3.1%
(4)
75.0%
(96)
21.9%
(28)
1.6%
(2)
0.8%
(1)
0.8%
(1)
4.7%
(6)
18.0%
(23)
7.8%
(10)
39.8%
(51)
29.7%
(38)
61.7%
(79)
32.0%
(41)
2.3%
(3)
3.1%
(4)
0.8%
(1)
66.4%
(85)
28.9%
(37)
2.3%
(3)
2.3%
(3)
0.0%
(0)
39.1%
(50)
46.1%
(59)
5.5%
(7)
9.4%
(12)
0.0%
(0)
70.3%
(90)
24.2%
(31)
2.3%
(3)
3.1%
(4)
0.0%
(0)
70.3%
(90)
26.6%
(34)
2.3%
(3)
0.8%
(1)
0.0%
(0)
7.0%
(9)
25.8%
(33)
4.7%
(6)
21.1%
(27)
41.4%
(53)
The data support the conclusion that many of the listed practices are
frequently used by experienced arbitrators before or during arbitration hearings.
In advance of hearings, most respondents usually (or always) work with counsel to
establish an appropriate order of proof (64.8%); make sure that, well prior to the
hearing, counsel work out logistical arrangements (94.5%); require parties to submit
454
[Vol. 25
a joint bundle of core exhibits (76.6%); require the submission of tabbed, indexed
exhibits prior to hearing, admitted en masse (84.4%); and require parties to show
demonstrative exhibits to each other a reasonable time before the hearing (78.2%).
In addition, most of the respondents usually or always urge counsel to focus on
the probativeness of evidence rather than its admissibility (65.6%); discourage
traditional objections (hearsay, etc.) (75.0%); try to limit the presentation of
duplicative or cumulative testimony (89.1%); accept affidavits or pre-recorded
testimony regarding less critical matters (62.5%); and tell counsel when a point has
been understood and they can move on, or when it was not understood and requires
clarification (85.2%). During the course of hearings they establish and maintain a
realistic daily hearing schedule (96.9%) and take witnesses out of order when
necessary (96.9%). They usually or always have a daily discussion with counsel on
administrative matters that need attention (93.7%); and, at the close of each hearing
day, confirm plans and expectations for the following day(s) (95.3%).
Some other practices on the list appear to be used more sparingly or
sporadically. These include asking counsel to consider the use of written direct
testimony for witnesses,139 establishing procedures to narrow and highlight
matters on which opposing experts agree, requiring experts to confer before the
hearing and providing the arbitrators with lists of the points on which they agree
or disagree,140 and encouraging the parties to employ a chess clock that limits
the total number of hours available to counsel for examination and argument.141
If the Survey data are any indication of general trends, it appears that
experienced arbitrators are now placing great emphasis on a wide range of tools
for actively managing hearings, just as they are tending to take proactive
approaches to the handling of dispositive motions and to discovery.
VI. DELIBERATING AND RENDERING ARBITRATION AWARDS
Recent empirical studies indicate several interrelated concerns about
arbitration lie at the heart of resistance to its use by some businesses.142 These
include the difficulty of successfully appealing arbitration awards, the fear that
arbitrators will not follow applicable legal standards in making an award, and the
perceived propensity of arbitrators to indulge in inappropriate compromises in
award-making.143
In order to assess the extent to which concerns about arbitration are justified,
the CCA/Straus Institute Survey contained several pertinent questions. A query
regarding subjects experience with appellate arbitration, a potential substitute for
139
See Stipanowich, Reflections, supra note 1, at 358.

For a discussion of expert hot tubbing, see id. at 359.
141
For a discussion of the chess clock approach, see id.
142
See Stipanowich & Lamare, supra note 2, at 51-54.
143
See id.; Stipanowich, Reflections, supra note 1, at 328-33.
140
2014]
455
a public judicial appeal, was discussed above.144 Table 6 summarizes group

responses to a series of other questions.
Table 6. Award Deliberation and Rendering
Q: As an arbitrator, how often do you do the
following in rendering a final award?
In the absence of a contrary

agreement between the parties, I
do my best to ascertain and
follow applicable law in
rendering an award.
I feel free to follow my own
sense of equity and fairness in
rendering an award even if the
result would be contrary to
applicable law.
I invite counsel to brief legal
issues in the case.
I carefully read and reflect upon
legal arguments and briefs
presented by counsel.
I negotiate with other arbitrators
(when serving on multi-member
tribunals) regarding the quantum
of damages to be awarded.
Always
Usually
86.7%
(111)
11.7%
(15)
0.8%
(1)
0.0%
(0)
54.7%
(70)
35.2%
(45)
97.7%
(125)
26.6%
(34)
About
half the
time
0.0%
(0)
Sometimes
Never
1.6%
(2)
0.0%
(0)
25.0%
(32)
74.2%
(95)
3.9%
(5)
6.3%
(8)
0.0%
(0)
2.3%
(3)
0.0%
(0)
0.0%
(0)
0.0%
(0)
18.0%
(23)
7.0%
(9)
38.3%
(49)
10.2%
(13)
0.0%
(0)
The data indicate that where legal issues are in play, experienced arbitrators
tend to be conscientious in paying heed to them and addressing them in a manner
consistent with applicable law. All respondents claimed, usually or always, to
carefully read and reflect upon legal arguments and briefs presented by counsel.
Nearly all asserted that, in the absence of an agreement to the contrary, they do
[their] best to ascertain and follow applicable law in rendering an award. There
was also a strong tendency among respondents to invite counsel to brief legal
issues in the case.
There remain, however, two responses that indicate the need for further
inquiry. First of all, although nearly three-quarters (74.2%) of respondents never
feel free to follow [their] own sense of equity and fairness in rendering an award
even if the result would be contrary to applicable law, the other quarter (25.8%)
do, at least some of the time. It is not entirely clear how these latter arbitrators
144
See supra Part III.E.
456
[Vol. 25
interpret their mandate, but their response should encourage deeper discussion
about the ethical as well as legal implications of such choices.145
In light of longstanding concerns regarding arbitrator compromise, moreover,
it is also quite interesting to see that nearly nine-tenths of respondents (89.9%)
acknowledge that, at least sometimes, they negotiate with other members of a
tribunal respecting the quantum of damages to be awarded. In order to
understand the precise import of these responses and their implications for users,
further investigation and discussion is appropriate.146
VII. ARBITRATION AND SETTLEMENT147
Early settlement of a dispute can be a uniquely effective way of minimizing
cost and cycle time in dispute resolution.148 But the role of arbitrators in setting
the stage for or facilitating settlement has not been given significant attention, at
least in places like the U.S.149 For this reason, the CCA/Straus Institute Survey
included questions seeking information regarding their experiences with and
perceptions of settlement during arbitration.
A. Frequency of Settlement
Respondents were asked to provide estimates of the settlement rate for cases
they arbitrated (a) during the past five years and (b) during previous years. The
respective data are presented side-by-side in Chart OO.
145
These implications, as well as proposals for addressing them, are detailed in

Stipanowich, Reflections, supra note 1, at 326-41.
146
See id.
147
This subsection is adapted from Thomas J. Stipanowich & Zachary P. Ulrich,
Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators
Play, 6 Y.B. ON ARBITRATION & MEDIATION 1 (2014).
148
See id. at 5-6.
149
See id. at 6.
2014]
457
Chart OO. Settlement Prior to First Hearing

(Comparing Past 5 Years and Previous Years)
Q: Roughly what percentage of cases in which you were an
arbitrator settled prior to the first arbitration hearing?
9.2% (12)
More than 50%
15.3% (20)
9.2% (12)
13.7% (18)
Percentage of Cases
41% to 50%
16.0% (21)
31% to 40%
15.3% (20)
17.6% (23)
12.2% (16)
21% to 30%
14.5% (19)
11% to 20%
13.0% (17)
30.5% (40)
1% to 10%
26.0% (34)
3.1% (4)
0%
4.6% (6)
0%
5%
10%
15%
20%
25%
30%
35%
Previous 5 Years
The majority of respondents indicated that higher proportions of their

caseloads settled pre-hearing during the last five years than prior to that time.
This trend is indicated both by a relative decrease in respondents reporting lower
proportions of their caseloads as having settled (e.g., fewer respondents reporting
that 31% to 40%, or less, of their caseload settled pre-hearing) and by a relative
increase in respondents reporting higher proportions of their caseloads having
settled (e.g., more respondents reporting that 41% to 50% and [m]ore than
50% of their caseloads settled pre-hearing).
The Survey also asked respondents, Roughly what percentage of cases in
which you were an arbitrator settled at any time prior to award? Chart PP shows
results comparing respondent estimates of settlement rates for the past five years
with their estimates of settlement rates for earlier years.
458
[Vol. 25
Chart PP. Settlement Prior to Award

Q: Roughly what percentage of cases in which you
were an arbitrator settled prior to award?
15.3% (20)
More than 50%
22.9% (30)
13.7% (18)
Percentage of Cases
41% to 50%
18.3% (24)
14.5% (19)
31% to 40%
13.7% (18)
13.7% (18)
21% to 30%
9.2% (12)
13.7% (18)
11% to 20%
9.2% (12)
26.0% (34)
1% to 10%
21.4% (28)
3.1% (4)
0%
5.3% (7)
0%
5%
10%
15%
20%
25%
30%
Previous 5 Years
Again, participants were asked to distinguish between their experiences

[p]rior to [five] years ago and those within the past five years. The comparative
responses to these questions in Chart PP tell much the same story as those
displayed in Chart OO, above. Experienced arbitrators indicate that, during the
past five years, higher proportions of their caseloads settled pre-award than before
that time. However, while the data reflect a general upward shift in the extent of
pre-award settlement as well as the overall number of arbitrators whose cases are
settling pre-award, the data also reflect dramatic variances in settlement rates
among arbitrators.
As might be expected, the data indicate that some disputes that did not settle
prior to hearings are settled during hearings. (For example, while 15.3% of
respondents indicated [m]ore than 50% of their caseload settled pre-hearing in
the past five years, 22.9% of the same respondent pool indicated that more than
2014]
459
50% of their cases settled pre-award (including those that settled after the hearing
had begun). These results underscore the potential impact of arbitrators case
management at all stages of the arbitral process.
B. Concern with Informal Settlement
Survey participants were also asked, How often, if ever, are you concerned
with informal settlement of the cases before you as an arbitrator? As reflected in
Chart QQ, more than half of participants responded, Never. Another third
(34.4%) stated they concern themselves with settlement Sometimes. And only
about 12% (11.8%) of the respondents indicated they concern themselves with
settlement as much as half the time.
Chart QQ. Concern with Informal Settlement
Q: How often, if ever, are you concerned with informal
settlement of the cases before you as an arbitrator?
60%
53.9%
(69)
50%
34.4%
(44)
40%
30%
20%
10%
1.6%
(2)
5.5%
(7)
4.7%
(6)
Usually
About half the

time
0%
Always
Sometimes
Never
These responses are surprising given the heightened incidence of settlement in

recent years. It is possible that at least some portion of those who answered
Never to the Survey question did so because they view their roles and
responsibilities strictly within the context of superintending complete arbitration
processes that culminate in awards, and therefore do not believe it necessary or
appropriate to actively consider or engage in any way with the parties collateral
settlement efforts. Their view of their role in case management, in other words, is
460
[Vol. 25
wholly framed in terms of the adjudicative dimension hearing the case and
rendering an award and treats the possibility that the case might be disposed of
through settlement, however likely that might be, as irrelevant to their function as
arbitrators.150 Some, too, may have interpreted the question as asking, in essence,
How often do you regard yourself as personally responsible for settling the
case? or, in a more extreme vein, How often do you put on the hat of a mediator
to facilitate settlement of an arbitrated case? They might feel a sense of
discomfort with a role they believe requires them to employ skills or mindsets that
are very different from those of an adjudicator.151 More importantly, the question
may have stirred up the concerns of some respondents that too active a role in
facilitating or mediating settlement might be perceived as incompatible with the
arbitrators duty of impartiality,152 potentially undermining the arbitral
function.153 Finally, the focus on seeing the case through to an award may be
reinforced by the pressures some arbitrators may feel to sustain a sufficiency of
work hours in an increasingly competitive environment.154
For some or all of the foregoing reasons, many experienced commercial
arbitrators are reticent about the arbitral role in settlement. However, the Survey
results also indicate that many arbitrators tend to recognize and actively embrace
opportunities to promote settlement of arbitrated cases through their management
of the arbitration process. Each of the 59 respondents who reported concerning
themselves with informal settlement at least Sometimes were asked to estimate
the frequency with which they engage in particular behaviors that may increase
the likelihood of informal settlement. As reported in Table 7, the large majority of
this group indicated that their management of the pre-hearing process, summary
disposition of issues, and rulings on discovery matters prompt settlement in at
least some cases. Indeed, nearly one-fourth of respondents (23.7%) indicated that
their summary disposition of issues prompts informal settlement in about half or
more of their cases, and more than a quarter (25.4%) responded that their
management of pre-hearing processes plays an important role in pre-hearing
settlements in about half or more of their cases.
150
The CEDR Commission on Settlement in International Arbitration concluded that
[a]n arbitral tribunal has a primary responsibility to produce an award, which is binding
and enforceable, although the arbitral tribunal should also take steps to assist the parties
in achieving a negotiated settlement of part or all of their dispute. CEDR Commission on
Settlement in International Arbitration (Nov. 2009) at 2, 2.4.1-2.4.2, available at
http://www.cedr.com/about_us/arbitration_commission/Arbitration_Commission_Doc_Fi
nal.pdf.
151
Sophie Nappert & Dieter Flader, A Psychological Perspective on the Facilitation
of Settlement in International Arbitration - Examining the CEDR Rules, 2 J. INTL DISP.
SETTLEMENT 459, 461 (2011).
152
Id.
153
Id.
154
Stipanowich & Ulrich, supra note 147, at 6-7.
2014]
461
Table 7. Practices Encouraging Informal Settlement

Q: As an arbitrator, how often do you do the following with
respect to informal settlement of the cases before you?
Through my management of the

pre-hearing process, I play an
important role in helping to settle
the case prior to hearing.
My summary disposition of issues
prompts informal settlement of
the entire case.
My rulings on discovery matters
prompt informal settlement of the
entire case.
Always
Usually
About
half the
time
Sometimes
Never
0.0%
(0)
20.3%
(12)
5.1%
(3)
57.6%
(34)
16.9%
(10)
0.0%
(0)
6.8%
(4)
16.9%
(10)
66.1%
(39)
10.2%
(6)
0.0%
(0)
3.4%
(2)
3.4%
(2)
72.9%
(43)
20.3%
(12)
VIII. BRANCHING OUT: OTHER INTERVENTION ROLES

In the evolving and increasingly competitive field of conflict resolution, it is
to be expected that many dispute resolution professionals will try to employ their
skills in multiple settings and roles. The Survey sought information regarding
experienced arbitrators activities as dispute resolution professionals acting in
various capacities.
A. Non-Binding or Advisory Arbitration
Non-binding or advisory arbitration is sometimes employed in courtconnected ADR programs as well as some industry programs.155 When asked,
Have you rendered an arbitration award that the parties had previously agreed
would be non-binding or advisory?, roughly one-quarter of this group of
experienced arbitrators (33 of 131 respondents, or 25.2%) answered
affirmatively.
B. Early Neutral Evaluation, Case Assessment
The 2011 Fortune 1,000 Corporate Counsel Survey drew attention to many
companies current use of early neutral evaluation and early assessment
processes.156 These approaches are frequently engaged in the early stages of
litigation or private dispute resolution, and may involve assessments by neutrals
retained by or for both parties, or by persons retained as consultants by individual
155
See RESOLVING DISPUTES, supra note 17, at 555-57 (discussing National

Advertising Division non-binding evaluation and court-connected arbitration).
156
See supra note 2, at 52.
462
[Vol. 25
parties.157 Assessments may be part of a systematic process or ad hoc.158

Sometimes they are driven by the demands of e-discovery.159
The Survey group was asked, Have you participated as an early neutral
evaluator of a case, or made a formal assessment or evaluation of the likely
outcome of a case, as part of an early case assessment? About two-fifths of the
group (56 of 131 respondents, or 42.7%) indicated that they had done so.
C. Mediation
Mediation is the primary third-party intervention strategy for dispute
resolution in large companies,160 and there are indications that the use of
mediation will continue to grow globally.161 As discussed in Part X below,
moreover, three out of five (60.1%) respondents to the CCA/Straus Institute
Survey believed the growth of mediation and other conflict management
approaches was having a significant or moderate impact on their arbitration
practice.162 The great majority (82.8%) expected the use of mediation to increase
in the future.163
Today it is not uncommon for neutrals to render services as arbitrators and
also to mediate cases. As reflected in Chart RR, although 15.9% of arbitrators
responding to the CCA/Straus Survey do not mediate, over half (57.9%) mediate
at least occasionally (with the percentage of the work time devoted to mediation
ranging between 1% and 25%). Less than one-tenth of respondents (7.9%) appear
to devote over half of their work time to mediating.164
157
Id.
Id.
159
Id.
160
Id. at 41, 44-54 (survey of Fortune 1,000 corporate counsel indicates growing use
of mediation and expectations that their companies use of mediation is likely to continue
in the future).
161
See id.; Peter Cresswell, The Future of Arbitration in the Changing World of
Dispute Resolution, 79(3) ARBITRATION 288 (2013) (predicting that the steady increase
in the use of mediation will continue).
162
See infra Table 8.
163
See infra Part XII, Table 10.
164
The subject of dispute resolution professionals practicing as mediators as well as
arbitrators is discussed in Stipanowich, Reflections, supra note 1, at 385-86.
158
2014]
463
Chart RR. Mediation Practice as Percentage of Working Time

Q: What percentage of your work time, if any, is
currently devoted to practice as a mediator?
40%
37.3%
(47)
35%
30%
25%
20.6%
(26)
20%
15.9%
(20)
18.3%
(23)
15%
10%
6.3%
(8)
5%
1.6%
(2)
0%
0%
1%-10%
11%-25%
26%-50%
51%-75%
76%-100%
Percentage of Work Time
D. Med-Arb165
There has long been a debate over whether mediators should assume the role
of arbitrator in the event mediation does not resolve all of the issues in dispute, or
whether a sitting arbitrator should accept the parties invitation to put on a
mediators hat.166 In the United States and many other places, the traditional view
165
This subsection is adapted from Stipanowich & Ulrich, supra note 147, at 10, 25-28.
See generally COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 20-27,
28-33 (as a part of the final report of the CPR Commission on the Future of Arbitration,
offering extensive discussion of issues associated with mixed roles and offering detailed
guidance on the subject). Cf. Peter Robinson, Adding Judicial Mediation to the Debate
about Judges Attempting to Settle Cases Assigned to Them for Trial, 2006 J. OF DISP.
RESOL. 335 (2006) (exploring conflicting perspectives and practices of California judges
regarding their role in settling cases assigned to them for trial). See also Nappert &
Flader, supra note 151, at 461. Perspectives on dispute resolvers playing multiple roles is
166
464
[Vol. 25
has been that although dual-role med-arb may offer perceived benefits from the
standpoint of increased efficiency (since a single individual is conducting the
entire proceeding) and greater impetus to settle (since the mediator carries a big
stick as the final adjudicator if negotiations fail), it is usually inadvisable since
the roles of mediator and arbitrator are very different in focus [and] in some
respects incompatible.167 Nevertheless, there is evidence that dispute resolution
professionals sometimes play multiple roles in helping to resolve a dispute.168
Those 59 Survey respondents who indicated they were at least sometimes
concerned with the informal settlement of cases before them were asked about
their experiences changing roles or playing multiple roles (that is, as both an
arbitrator and mediator) in a particular case. Of those 59 individuals, just under
half (45.8%) indicated that they had sometimes mediated a dispute in which
they had been appointed an arbitrator, as shown in Chart SS below.
Chart SS. Mediation of Arbitrated Disputes
Q: How often, if ever, have you mediated disputes in
which you have been appointed as an arbitrator?
60%
54.2%
(32)
45.8%
(27)
50%
40%
30%
20%
10%
0.0%
(0)
0.0%
(0)
0.0%
(0)
Always
Usually
About half the

time
0%
Sometimes
Never
heavily influenced by culture. See generally Shahla F. Ali, The Arbitrators Perspective:
Cultural Issues in International Arbitration, Ch. 6, in INTERNATIONAL COMMERCIAL
ARBITRATION PRACTICE: 21ST CENTURY PERSPECTIVES (Horacio A. Grigera Naon & Paul
E. Mason eds., 2010).
167
COMMERCIAL ARBITRATION AT ITS BEST, supra note 78, at 20-21.
168
See RESOLVING DISPUTES, supra note 17, at 605 (citing informal survey of
commercial and employment mediators).
2014]
465
The respondent sub-group was also asked, Have you served as both a
mediator and arbitrator with respect to the same dispute, where during arbitration,
the parties asked you to switch to the role of an arbitrator? More than nine-tenths
of the group (25 of 27, or 92.6%) answered, Yes. In response to the further
question, Have you served as both a mediator and an arbitrator with respect to
the same dispute, where the parties agreed beforehand to have you first mediate
and then arbitrate, if necessary? two-thirds of the group (18 of 27, or 66.7%)
responded affirmatively. Thus, there is support for the notion that despite
conventional concerns among U.S. advocates and arbitrators respecting neutrals
wearing multiple hats, quite a few arbitrators have experience with forms of single
neutral med-arb.169
IX. PROVIDER ORGANIZATIONS
A. Current Efforts of Arbitration Service Providers
In the competitive marketplace of conflict resolution, provider organizations
are playing an increasingly active and visible role, not only in providing
administration for arbitration processes but in promoting new rules, softlaw,170 and
other templates for arbitration and dispute resolution practice.171
Respondents were asked their opinions regarding quality- or processimprovement efforts by arbitration service provider organizations under whose
rules they had arbitrated. The results are summarized in Chart TT below.
169
See Stipanowich & Ulrich, supra note 147, at 25-28 (discussing this Survey data
and similar data from the IAM/Straus Institute Survey, supra note 18).
170
Thomas Stipanowich, Soft Law in the Organization and General Conduct of
Commercial Arbitration Proceedings, in SOFT LAW IN INTERNATIONAL ARBITRATION
(2014) (soft law guidelines usually function as a compass . . . rather than a straitjacket,
although sometimes they influence contract language or modifications to arbitration rules
and procedures).
171
See Thomas J. Stipanowich, Behind the Neutral: The Critical Role of Provider
Institutions, AAA HANDBOOK ON COMMERCIAL ARBITRATION (2d ed. 2010); REDFERN &
HUNTER, supra note 1, at 237.
466
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Chart TT. Arbitration Services and User Satisfaction

Q: What are arbitration provider organizations under whose
rules you have arbitrated doing to improve or maintain the quality
of arbitration services and user satisfaction with arbitration, if anything?
Modifying rules as industry needs

evolve
31 (27.4%)
Providing continuing
education/training for panelists
25 (22.1%)
Seeking/using panelist and user

feedback
16 (14.2%)
Higher quality panelists/higher

panel standards
11 (9.7%)
Requiring continuing
education/training of panelists
9 (8.0%)
Streamlined case facilitation
9 (8.0%)
Focus on arbitration cost and

time savings
7 (6.2%)
Increased monitoring of ongoing

cases
7 (6.2%)
Improved quality of case

managers
6 (5.3%)
0%
10%
20%
30%
Over one-quarter of respondents (31 individuals, or 27.4% of the group)

pointed to arbitral institutions regular revision and addition of procedural rules as
a means by which they improve their services and user satisfaction. Many
comments regarding service-providers rule changes focused on the ways in which
new rules are aimed at making arbitration more efficient, cost- and time-
2014]
467
effective.172 Further emphasizing the importance of adapting institutional

arbitration procedures to constantly shifting industry dynamics, almost onequarter (25 individuals, or 22.1%) indicated that providing continuing education
and training opportunities for arbitrators on their panels was a means by which
arbitration service providers improved their services and increased their value to
users. Nine respondents (8.0%) emphasized that requiring ongoing training and
education had increased the quality of panels in some institutions, particularly the
American Arbitration Association (AAA).173 Another 16 respondents (14.2%)
mentioned service-providers efforts to solicit and implement feedback from
panelists and users, particularly regarding arbitrators[] performance, award
form and quality, as well as periodic user surveys and focus groups to determine
the parties and the lawyers level of satisfaction with the arbitration services. A
smaller minority (nine responses, or 8.0%) noted the streamlining of case
facilitation; seven responses (6.2%) mentioned institutions focus on user cost and
time savings as means by which arbitral institutions have maintained or improved
their services and user satisfaction. Arbitration-process efficiency was also the
focus of another seven responses (6.2%) emphasizing how service-provider staff
have become increasingly active in monitoring ongoing cases; six responses
(5.3%) spoke to the improved quality of case managers overall. A further four
responses (3.5%) stated that arbitral institutions have maintained or improved
their services and user satisfaction by placing an increased emphasis on
minimizing discovery and by using administrative processes to ensure potential
conflicts between parties and panelists are disclosed before panelists are selected.
Much of the commentary spoke in general terms, although many respondents
singled out particular provider institutions for their efforts to maintain or improve
services and user satisfaction.174
B. Areas for Further Improvement
In an effort to create a balanced assessment of respondent views regarding
arbitral institutions services and user satisfaction, the Survey also asked
participants to consider [i]n what ways, if any, might their efforts be improved?
A total of 103 responses were received.
Responses touched on a wide range of topics. Eleven subjects (10.7% of the
respondent pool) commented that arbitration service providers should continue
present efforts. Another nine individuals (8.7%) advocated for a general increase
172
These and other, similar comments suggest a connection between recent arbitral
institutions rule changes and recent efforts by the same institutions to streamline their
case facilitation processes as well as focus on cost and time savings generally.
173
Given the relative size and breadth of AAA arbitration panels, this is the U.S.
arbitration provider institution with which respondents were most likely to have formed a
professional connection. Some other provider institutions field much smaller panels of
neutrals; some, like JAMS, have exclusive relationships with arbitrators.
174
Because the Survey question did not ask subjects to report on or otherwise name
any particular arbitration service providers, however, many respondents completed this
question without specifying any arbitral institution.
468
[Vol. 25
in the quality of case managers on the staff at arbitral institutions, encouraging

providers to offer better compensation and benefits so as to minimize turnover
while improving hiring standards and training for those case managers currently
on staff.175 In the same vein, eight respondents (7.8%) each responded that
improved communication between institution staff and panelists, including faster
responses to arbitrators procedural questions,176 and shorter procedural deadlines
especially before and during panelist screening and selection were important
ways in which service providers could enhance the quality of their services and
raise user-satisfaction levels. Seven individuals (6.8%) indicated there should be
more stringent admission requirements for institutional arbitration panels; one
suggested that panelists should be able to rate one another using a system to
inform panelist retention decisions.177 Five individuals (4.9% of the respondent
pool) commented that institutions should increase opportunities for panelist
feedback from users, while another four individuals (3.9%) stated that panelists
should be given more authority to limit the efforts of litigation-oriented counsel to
treat arbitral processes as they would a trial, including authority to limit on
discovery.178 There were a number of other topics touched upon by multiple
respondents;179 several offered differing perspectives on the issue of diversity.180
175
Those respondents who commented on this issue seemed to be in consensus,
generally, that as one survey participant wrote, [T]he individual case managers vary
greatly in ability and knowledge, while a few respondents wrote that [p]roviders could
improve case management through a) more training of case managers, and b) higher
compensation to improve retention of case managers. Correspondingly, two respondents
wrote that services could be improved through [b]etter instruction to case managers of the
role of arbitrators in interpreting the rules and if service providers would authorize
administrators, case managers to be more flexible (or expansive) in following set
organization protocols and rules. One respondents statement perhaps encapsulates the
general sentiment of those who wrote on this topic: Case managers need to be . . . attuned
to arbitrator needs as well as parties. In addition, [they] must be supportive of efforts to
renew the promise of arbitration.
176
For instance, one respondent wrote that [a]dministration and communication with
case managers still needs improvement. I myself have written emails and left voicemail
messages that remained unanswered for what I consider to be unacceptable periods of time.
177
One respondent wrote specifically that [t]ribunals should insist on confidential
comments about fellow arbitrators on multi-arbitrator panels so that the problem
arbitrators are identified and either counseled or removed from arbitrator lists.
178
One individual stated that service providers should be educating the bar and
prospective parties that arbitration has significant differences from court litigation and what
these differences are while another respondent suggested that there should be [b]etter
education of the users about the extent of their right to control the process and how they
might do so. Another respondent suggested [r]equiring the participation of non-attorney
representatives during all preliminary conferences, scheduling conferences[,] and discovery
and motion practice conferences, to assist the arbitr[a]tor in determining what kind of
process the party truly desires, and not just what outside litigation counsel assert they want.
Others stated that arbitration service providers should be [e]nabling[ ]panelists to account
for, and reign in, litigation-oriented counsel. One respondent urged providers to
[a]dopt stronger rules for control and limitation of discovery because [c]ompetent
2014]
469
X. TRENDS AFFECTING DOMESTIC (U.S.) ARBITRATION PRACTICE

Recent advances in technology, the growing usage of mediation and other
dispute resolution and conflict management processes, the globalization of
international business and relations, and other trends have the potential to
dramatically transform processes for the management and resolution of contract
disputes, including arbitration.181 The Survey therefore included questions touching
on perceptions regarding the impact on arbitration practice of a number of current
developments in the previous ten years. The results are summarized in Table 8.
Table 8. Factors Influence throughout Previous Decade
Q: To what extent have the following factors affected
your domestic arbitration practice during the last ten years?
Not at
all
Not
sure
Significantly
Moderately
Minimally
Information technology
48.4%
(62)
37.5%
(48)
8.6%
(11)
3.1%
(4)
2.3%
(3)
Globalization
11.7%
(15)
28.9%
(37)
25.0%
(32)
21.1%
(27)
13.3%
(17)
11.7%
(15)
46.9%
(60)
21.1%
(27)
13.3%
(17)
7.0%
(9)
7.8%
(10)
45.3%
(58)
25.8%
(33)
15.6%
(20)
5.5%
(7)
Changes in business
practices and attitudes
Changes in the way
arbitrations are
conducted
lawyers will use the opportunity to take discovery. They are forced to do so to
avoid any suggestion of lack of preparation and only too willingly expand
discovery for their own reasons. Tighter limitations would eliminate this problem.
As an arbitrator it is difficult to restrain competent lawyers where all parties have
agreement on how they wish to proceed. Limits in the rules would be helpful.
179
These responses include, among other things, respondents desire for an increased
focus on leveraging pre-award settlement opportunities (three individuals, 2.9%); and for
service providers to solicit more feedback from users (three individuals, 2.9%).
180
One survey participant wrote that [t]hey [the service providers] all should rely on
the more experienced members of their panels and forego efforts to be more inclusive or
diversified. Another suggested that service providers would benefit from
[r]ecruitment of a broader range of potential arbitrators to serve. Most are trying
but the panels remain insufficiently diverse, not just as to the gender, race, etc.
but also as to personal and professional life experiences. The vast majority of
arbitrators understandably come from the world of commerce while arbitration is
now the method of choice to resolve far more diverse disputes, including
employment, consumer, medical and others.
181
See, e.g., Stipanowich, Reflections, supra note 1, at 387-92 (discussing the
implications of globalization, technological advancement, and the insights of behavioral
science and empirical data collection on arbitration practice).
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[Vol. 25
Growing use of
mediation and other
conflict management
approaches
Insights provided by
studies on conflict
psychology (e.g.,
cognition, perception,
decision-making)
20.3%
(26)
39.8%
(51)
24.2%
(31)
7.8%
(10)
7.8%
(10)
9.4%
(12)
18.8%
(24)
39.8%
(51)
20.3%
(26)
11.7%
(15)
The large majority of respondents (85.9%) indicated that information

technology had had a moderate or significant impact on their arbitration
practice; almost half (48.4%) viewed the impact of IT as significant. The
second greatest impact on arbitration was ascribed to the growing use of
mediation and other conflict management practices, with a majority (60.1%)
indicating a moderate or significant impact, and more than a fifth (20.3%)
reflecting a significant impact.
The respondent group viewed other factors as having less important impacts:
changes in business practices and attitudes (58.6% moderate or significant);
changes in the way arbitrations are conducted (53.1% moderate or
significant); globalization (40.6% moderate or significant); and insights
provided by studies on conflict psychology (28.2% moderate or significant).
Survey subjects were also asked to indicate to what extent the foregoing
developments exerted a positive or negative effect on their own arbitration
practice, as summarized in Table 9.
Table 9. Positive and Negative Effects of Influencing Factors
Q: Have the effects of these factors on your domestic arbitration
practice during the last ten years, if any, been positive or negative?
Both
Neither
Very Somewhat positive positive Somewhat
Very
positive positive
and
nor
negative negative
negative negative
Information
technology
Globalization
Changes in
business
practices and
attitudes
Changes in the
way arbitrations
are conducted
Not
sure
23.4%
(30)
9.4%
(12)
30.5%
(39)
21.9%
(28)
26.6%
(34)
7.8%
(10)
8.6%
(11)
31.3%
(40)
6.3%
(8)
0.8%
(1)
0.0%
(0)
0.0%
(0)
4.7%
(6)
28.9%
(37)
3.1%
(4)
26.6%
(34)
27.3%
(35)
18.8%
(24)
8.6%
(11)
1.6%
(2)
14.1%
(18)
12.5%
(16)
43.8%
(56)
10.9%
(14)
21.1%
(27)
3.1%
(4)
0.8%
(1)
7.8%
(10)
2014]
Growing use of
mediation and
other conflict
management
approaches
Insights provided
by studies on
conflict
psychology (e.g.,
cognition,
perception,
decision-making)
471
12.5%
(16)
35.2%
(45)
15.6%
(20)
19.5%
(25)
7.0%
(9)
0.8%
(1)
9.4%
(12)
7.0%
(9)
24.2%
(31)
7.0%
(9)
35.2%
(45)
1.6%
(2)
0.8%
(1)
24.2%
(31)
The collective response indicates that this group of experienced arbitrators

tends to view each of the current developments in a relatively affirmative light.
Large majorities saw each factor as having some degree of positive impact, even if
some viewed its impact was mixed. Relatively few identified developments as
having a negative impact.
Particularly positive assessments were given to changes in the way
arbitrations are conducted (56.3% indicating an essentially positive impact);
information technology (53.9% indicating an essentially positive impact); and
growing use of mediation and other conflict management approaches (47.7%
indicating an essentially positive impact).
At the same time, however, some negative undercurrents are observable. Two
are especially worthy of note. First of all, more than a quarter (26.6%) of
respondents indicated that information technology had negative as well as
positive impacts on arbitration practice, and another 6.3% saw its effect as
generally negative. Second, although many respondents (29.7%) viewed the
impact of changes in business practices and attitudes as a generally positive
development, nearly as many (27.3%) saw both negative and positive impacts, and
another 10.2% perceived the impact as essentially negative.
It is difficult to interpret these results because respondents may have very
different reasons for identifying a trends influence as positive or as negative. 182
In order to provide further clarity, subjects were also asked to explain in what
ways they thought these factors positively or negatively influenced their domestic
arbitration practice. Ninety-nine respondents183 chose to elaborate on this topic,
and many of their responses are summarized in Chart UU below.
One respondents self-definition of a positive impact may be quite different or
even the opposite of anothers. For example, one arbitrator may perceive that
globalization here references a general trend toward the increasing usage of arbitration
for cross-border disputes while another perceives that it means an increased cultural
diversity among parties and panelists (or both). Both individuals might thus perceive
globalization as having positive or negative influences on arbitration practice, but
for different reasons.
183
respondents intent was both unambiguous and clearly fell within that categorys stated
182
472
[Vol. 25
Chart UU. Perceptions of Factors Influences

Q: Please explain the positive and/or negative impacts
these factors have had on your domestic arbitration practice, if any.
Technology enabling previously impossible

processes and efficiences
36.4% (36)
Technology costing time and money,
leading to discovery disputes
23.2% (23)
Mediation leading to increased/earlier

settlement
22.2% (22)
Greater user awareness of ADR processes

available/increased sophistication of users
13.1% (13)
Benefits from industry-wide focus on cost

and time savings/usage of "muscular
arbitration"
10.1% (10)
Benefits from business/user focuses on cost

and time savings
9.1% (9)
Mediation decreasing arbitration

caseloads/causing lost income for
arbitrators
9.1% (9)
Process inefficiences due to counsel who

want to "litigate" arbitration proceedings
8.1% (8)
User/counsel wariness of using arbitral

processes (e.g., lack of appeal, perceived
cost/time)
7.1% (7)
0%
10%
20%
30%
40%
The most striking insight coming out of our analysis of the respondents
comments is that the vast majority of observations about the positive or negative
impact of trends revolved to some extent around concerns about the cost, length,
and efficiency of arbitration and dispute resolution.184 Exemplary of these
concerns are the dichotomous effects arbitrators perceive as resulting from
description. Twenty responses (20.2% of the response sample) could not be categorized
but were still included in the stated sample size for purposes of accurately statistically
representing the response pool. Further, because this question was open-ended, multiple
responses included respondent statements that were able to be classified into two or more
of the stated categories, and in such instances all valid categorizations applicable to a
given response were used.
184
See supra text accompanying note 95, Parts IV.A., B. and C. (discussing the
multiple approaches to addressing such concerns).
2014]
473
technology. On the one hand, over one-third (36 individuals, or 36.4% of the
subject pool) of respondents indicated they thought technology had enabled
previously impracticable approaches and related efficiencies in arbitration,
including digital exhibit presentation and more efficient communication and
testimony through e-mail and vide[oc]onferencing,185 On the other hand,
almost one-quarter (23 respondents, or 23.2%) indicated they believed technology
in the form of e-discovery has led to longer and more costly discovery,
mountains of redundant data and disputes concerning discovery procedures
that previously would not have occurred.186 One respondent cautioned that [t]he
deep pocket party can, through [e]-discovery, ma[k]e the process far too
expensive for parties without deep pockets.
The impact of mediation was another important theme. More than one-fifth of
commenters (22 individuals, or 22.2%) wrote that, during the past ten years,
Other examples respondents discussed included real time access to case briefs,
prior testimony in the arbitration and presentation of argument with electronic illustration
as well as the facilitation [of] cases where witnesses are scattered and far away,
retrieval of archival evidence and the usage of techniques that previously were not
accessible in moderate-sized cases, including use of court reporters using Int[e]rnet
CART [Computer Access Realtime Translation] [where] court reporting with live
reporters and paper transcript is too expensive. One respondent commented that
[s]imultaneous use of digitized exhibits, alone, has shortened some hearings by 50%,
while another more specifically described how [i]nformation technology has made it
easier to deal with . . . searching transcripts, searching exhibits [and] chronologically
reordering exhibits.
186
Typical of respondents views regarding e-discovery was the following: Properly
used, it can give the parties quicker and more cost-effective access to needed information.
Improperly used, it can cause huge wastes of time and money. Another respondent
lamented that IT has resulted in an explosion of redundancy of information and document
custodians as a consequence of broad email and text distribution and the replacement of
in-person and telephone conversation with e-mail and text exchanges and that there has
been a failure of advocates to take advantage of technical innovations (e.g., computerassisted discovery or predictive coding) to reduce data discovery burdens (parenthetical
from original text).
Several respondents also noted increased incidences of discovery-related disputes
stemming directly from e-discovery, including some that may, in part, have occurred due
to lack of clarity regarding e-discovery processes in applicable rules or agreements. In the
words of one:
E-discovery leads to more discovery disputes because parties often complain that
their adversaries have not produced certain documents[.] In almost all of my
cases, documents are uncovered after a party has said that all documents are
produced either because the attorneys request to a clients personnel is
ambiguous or because the client did not look in the right places.
One commenter noted that ESI [Electronically Stored Information] has not been
controlled or managed under most arbitral rules versus the development of ESI in FRCP
[Federal Rules of Civil Procedure][Rule] 26, while another suggested that while
technology has enabled the retrieval of previously unavailable documentation . . . it
spawns a lot of controversy about protoc[o]ls for doing so.
185
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[Vol. 25
mediation has led to earlier settlement of arbitrated cases.187 Another nine

respondents (9.1%) offered variants of the statement that [i]ncreased use of
mediation tends to reduce arbitration case load, but it is a good thing for clients
and dispute resolution in general.188 Several individuals ascribed the increased
usage of mediation as due to heightened user awareness of ADR processes and
how they work (13 individuals, or 13.1%).189
Many respondents also commented on the general trend of arbitration service
providers, and individual arbitrators, to focus on saving party time and money by
streamlining or expediting arbitration procedures. Ten individuals (10.1%) noted
that the arbitration field has benefited from industry-wide focuses on cost and time
savings, including the implementation of more proactive and energetic techniques to
streamline or expedite arbitration processes;190 another nine respondents (9.1%)
indicated that the arbitration field has benefited from users, and especially
businesses, increased focus on reducing the cost and time required to arbitrate
disputes.191
187
See Stipanowich & Ulrich, supra note 147, at 8-9 (discussing potential impact of
mediation on the increasing incidence of settlement of arbitrated cases prior to hearing or
to publication of an award); see generally Stipanowich, Reflections, supra note 1, at 38183 (reiterating these data and discussing them within the broader context of mediations
present and future role in international arbitration practice).
188
Another respondent articulated the perspective that [m]ediation offers its own
opportunities to serve as a mediator. It does make cases go away, but that is a good thing:
there are plenty of cases. We have to do our best in each one. Still another commenter
observed that [m]ediation serves to focus the issues in dispute and to harden positions that
survive the attempt to mediate. There were, however, also comments about the personal
negative repercussions of mediations proliferation, such as a respondents observation that
[mediation] often results in [a]rbitration cases settling after hearing dates have been
reserved on the calendar for[ ]months, and that mediation causes havoc to scheduling and
causes lost income for the matters turned down because of the case that settles late.
189
For example, respondents commented how [c]lients are much more involved[ ](a
very good thing) (parenthetical from original text) and that [c]onsumers of services . . .
are more aware of the issues that protract arbitrations and the increases in cost and seek to
work around or avoid them. One respondent perceived a greater willingness among
parties to structure procedures or to settle, based on anticipated cost[s] (including their
own attorneys fees and expenses) and perceived risk (parenthetical from original text).
190
Several respondents mentioned recent initiatives aimed toward empowering and
training arbitrators to actively manage their cases in disciplined manners that aim to limit
the time and expense required to complete arbitration proceedings.
See Mitchell
Marinello & Robert Mallin, Muscular Arbitration and Arbitrators Self-Management Can
Make Arbitration Faster and More Economical, 67 DISP. RES. J. 69, 69 (2013). One
commenter noted that [c]hanges in arbitration practice, such as the Muscular Arbitrator,
have made arbitration more efficient and enabled me, I think, to do a better job, while
another commented succinctly that muscular arbitration simplifies cases.
191
For example, one respondent commented that [c]ost-driven business approaches
reinforce my efforts to streamline procedures. A different participant noted, however,
that [m]any businesses are so wary of costs as to shun arbitration, and another replied
that the same pressures motivating businesses to save time and money may also be
2014]
475
In a related vein, eight individuals (8.1%) pointed to an increase in the number

of counsel who want to litigate in arbitration as a primary cause for arbitration
inefficiency,192 while another seven (7.1%) expressed concern that a growing
number of counsel or business users are reluctant to use arbitration because they
have either experienced first-hand or heard about . . . arbitrations where the result
and costs are basically equal to or even more than litigation, with a primary
difference being that most arbitrations are without the right of appeal offered by
litigation.193
XI. PERCEIVED DIFFERENCES BETWEEN U.S. AND
INTERNATIONAL ARBITRATION PRACTICE
Although the CCA/Straus Institute Survey was primarily focused on
arbitration of domestic disputes in the United States, a high percentage of the
experienced arbitrators claim experience as arbitrators in international disputes.194
This latter group was given the opportunity to report on any significant differences
between their experiences in, or perspectives regarding, domestic and
international practice.195
preventing them from compromising throughout their disputes. [B]usiness practices and
attitudes have become more aggressive in more competitive environments, resulting in
more disputes and less willingness to compromise them except under pressure from
transactional costs.
192
Some respondents comments suggest occasional extreme efforts of counsel in this
regard. Even after repeated warnings, some counsel refuse to be dissuaded from
continuing to litigate. Correspondingly, one respondent noted that the reluctance of
panel arbitrators to push back when experienced courtroom litigators insist on handling
cases in arbitration as if they were in court, particularly when advocates on both sides of a
case agree on a litigation approach is at least partially to blame for inefficiencies caused
by counsel treating arbitration as they would trial, while another disagreed and stated that
such efforts by arbitrators to reign in counsel have compromised somewhat deference
to party autonomy. A few respondents viewed counsels efforts of treating arbitration as
trial to be indicative of inexperience rather than overt attempts to manipulate the process.
Counsels growing understanding of the differences between court litigation and
arbitration has resulted in more efficiency; when counsel do not understand, however,
proceedings can be inefficient and more costly for all.
193
One respondent took these points further, noting, I do sense a change in attitude
toward commercial arbitration and a fear among business people that arbitration has moved
closer to litigation. There is also trepidation due to the lack of appeal and uncertainty as to
the arbitrators commi[t]ment to follow the applicable law. Another Survey participant
commented that [s]ome parties are very adverse to tribunal administrators such as the AAA
which they perceive as archaic, inefficient and expensive. In my opinion, these beliefs have
tended in recent years to steer parties away from arbitration.
194
See supra Part III.A.
195
The 107 respondents who claimed to have served as an arbitrator of an
international dispute were asked the optional question, If your answers to any of the
questions in Section I would have been significantly different had those questions
pertained to international arbitrations, please explain how they would have been different.
476
[Vol. 25
Forty-four respondents196 took the opportunity to comment on this question.

Sixteen individuals (36.4% of commenting respondents) indicated that they
perceived no significant difference between their domestic and international
arbitration practice as pertaining to the Survey questions.
Of those 28 respondents who did perceive differences, comments were
overwhelmingly directed toward procedural contrasts affecting cost and time in
arbitration. Seven respondents (25.0%) indicated that their international cases
entail relatively abbreviated discovery (information exchange) processes. Several
respondents supported the notion that the involvement of foreign parties makes it
easier to limit discovery.197 Comments also touched on the role in international
cases of the IBA Rules of the Taking of Evidence in International Commercial
Arbitrations198 and other guidelines.199 Four individuals (14.3%) commented that,
in particular, their international cases use witness statements in lieu of direct
testimony, and that doing so saves parties time and money. Other participants
made more general comments, including the observation that international cases
prompt them to have concern about different ethical obligations and expectations
re[garding] discovery and other issues.
196
respondents intent was both unambiguous and clearly fell within that categorys stated
description. Seventeen responses (38.6% of the response sample) could not be categorized
but were still included in the stated sample size for purposes of accurately statistically
representing the response pool.
197
Particularly . . . when there are foreign parties involved, its easier to lean on
U[.]S[.] parties to cut down on discovery; when both lawyers are from the U.S. it ends
up being like a domestic arbitration. See Stephen N. Subrin, Discovery in Global
Perspective: Are We Nuts?, 52 DEPAUL L. REV. 299, 302 (2002) (Lawyers in civil law
countries do not conduct pretrial depositions. There is also no pretrial document
production conducted by the lawyers.); Giacomo Rojas Elgueta, Understanding
Discovery in International Commercial Arbitration through Behavioral Law and
Economics: A Journey Inside the Minds of Parties and Arbitrators, 16 HARV.
NEGOTIATION L. REV. 165, 173 (2011) (limiting the scope of discovery in international
arbitration has been identified as a fundamental way of treating parties from different legal
traditions equally).
198
IBA RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION,
adopted by a resolution of the IBA Council May 29, 2010. One respondent stated, I try
to persuade parties to adopt the IBA Rules for the Taking of Evidence in International
Commercial Arbitrations, which eliminate depositions and limit the production of
document[s], and encourage the use of witness statements. Once the IBA Rules apply, the
process becomes much more streamlined.
199
For instance, one respondent commented, I'm much tougher regarding discovery
given the ICDR Guidelines. See ICDR GUIDELINES FOR ARBITRATORS CONCERNING
EXCHANGES OF INFORMATION (May 31, 2008).
2014]
477
XII. LOOKING FORWARD

Although the CCA/Straus Institute Survey was primarily focused on
commercial arbitrators past experiences, current practices and perceptions of
practice, subjects were also asked to forecast the relative usage of various dispute
resolution methodologies during the coming decade. Table 10 summarizes the
responses.
Table 10. Estimated Usage of ADR Processes in Coming Decade
Q: If you had to guess, during the coming decade will the
use of each of the following increase, decrease, or stay the same?
Increase Stay the same Decrease Not sure
64.8%
(83)
45.3%
(58)
18.0%
(23)
25.8%
(33)
19.5%
(25)
31.3%
(40)
0.8%
(1)
10.2%
(13)
23.4%
(30)
8.6%
(11)
25.0%
(32)
27.3%
(35)
Final offer (baseball) arbitration
13.3%
(17)
39.1%
(50)
10.2%
(13)
37.5%
(48)
Arbitrations before a sole arbitrator
56.3%
(72)
33.6%
(43)
3.9%
(5)
6.3%
(8)
52.3%
(67)
67.2%
(86)
26.6%
(34)
36.7%
(47)
50.8%
(65)
82.8%
(106)
23.4%
(30)
18.8%
(24)
46.9%
(60)
36.7%
(47)
9.4%
(12)
13.3%
(17)
1.6%
(2)
3.1%
(4)
18.8%
(24)
12.5%
(16)
3.1%
(4)
1.6%
(2)
22.7%
(29)
10.9%
(14)
7.8%
(10)
14.1%
(18)
36.7%
(47)
2.3%
(3)
Non-binding arbitration
8.6%
(11)
29.7%
(38)
26.6%
(34)
35.2%
(35)
Early neutral evaluation
32.8%
(42)
35.9%
(46)
4.7%
(6)
26.6%
(34)
Early case assessment
39.1%
(50)
26.6%
(34)
4.7%
(6)
29.7%
(38)
B2B (business-to-business) arbitration
43.8%
(56)
32.0%
(41)
8.6%
(11)
15.6%
(20)
Fast track (streamlined) arbitration

Appellate arbitration processes
Med-Arb (with the same neutral playing
both roles)
Multi-step processes
Customized dispute resolution processes
(in general)
Administered arbitration
Non-administered arbitration
Online arbitration
Mediation
478
Consumer arbitration
Employment arbitration
30.5%
(39)
26.6%
(34)
16.4%
(21)
39.8%
(51)
34.4%
(44)
9.4%
(12)
[Vol. 25
18.8%
(24)
24.2%
(31)
A large majority of the group (106 respondents, or 82.8% of the group)

expected mediation to see increasing use. Majorities also anticipated growth in
the use of customized dispute resolution processes (67.2%); fast track
(streamlined) arbitration (64.8%); single-arbitrator processes (56.3%); multistep processes (52.3%) and online arbitration (50.8%). Large minorities expected
more use of appellate arbitration processes (45.3%); B2B arbitration (43.8%);
early case assessment (39.1%); and non-administered arbitration (36.7%).
On the other hand, there were a few situations in which a relatively sizeable
number of respondents forecast decreasing use. These included consumer
arbitration (34.4% predicted a decrease, as compared to 30.5% who predicted an
increase); non-binding arbitration (26.6% predicted a decrease, as compared to
8.6% who predicted an increase); and med-arb (with the same neutral playing both
roles) (23.4% predicted a decrease, as compared to 18.0% who predicted an
increase).
XIII.
CONCLUSION: KEY INSIGHTS FROM THE CCA/STRAUS

INSTITUTE SURVEY ON ARBITRATION PRACTICE
The CCA/Straus Institute for Dispute Resolution Survey on Arbitration

Practice may be the broadest and deepest canvas of experienced commercial
arbitrators ever undertaken. In any case, it is the most ambitious published study.
The Survey affords us extensive data on arbitrators reported experiences,
practices and perspectives with respect to many different aspects of the largely
hidden realm of arbitration and dispute resolution.
While we are unable to say whether these data reflect the backgrounds,
experiences, behaviors and views of arbitrators generally, or even the broad run of
arbitrators in the U.S., they do give us many insights regarding a segment of the
most experienced and well-known commercial arbitrators. Among the most
salient of these insights are the following:
1. The ranks of prominent and experienced arbitrators are dominated by
older men, although women are very gradually overcoming traditional
entry barriers and establishing successful careers as arbitrators and dispute
resolution professionals alongside their male colleagues.200
2. Prominent, experienced commercial arbitrators are overwhelmingly
lawyers, mainly veterans of litigation a reality that undoubtedly reflects
(and may in some ways reinforce) the legalized or judicialized nature
200
See supra Part II. A & B.
2014]
of current commercial arbitration.201

tribunals appears to have waned.202
479
The use of multidisciplinary
3. Many retiring lawyers envision appointments as an arbitrator and dispute

resolution professional as a way of making money and deriving other
benefits through an extended active retirement, putting them in
competition with full-time practitioners. A majority of both groups do not
have as many arbitral appointments as they would like.203
4. International cases are becoming a greater portion of the caseload of
experienced U.S. arbitrators, and expectations are for this trend to
continue.204
5. Prominent, experienced commercial arbitrators have extensive experience
as sole arbitrators; a solid minority have acted as sole arbitrators in cases
involving very large sums.205 The group also has extensive experience
with tripartite arbitration,206 streamlined or fast-track cases,207 and ad hoc
arbitration or arbitration under non-administered rules.208 A smaller
number claim experience in other kinds of proceedings (such as finaloffer arbitration,209 appellate arbitration,210 and emergency arbitration211).
6. Although most experienced arbitrators believe tripartite panels in which
wing arbitrators are appointed unilaterally by a party generally work
well, there are also perceptions that wing arbitrators sometimes are
predisposed toward the party that appointed them and may even lean
toward their parties position in rendering a final award.212
7. Experienced arbitrators appear to be embracing a proactive approach to
management of arbitration proceedings and employing a wide array of
techniques to tailor arbitration processes to the circumstances and the
needs of parties, including through handling of pre-hearing dispositive
motions and discovery, and managing hearings.213
8. In deliberating on and rendering awards, experienced arbitrators appear to
pay great attention to applicable law. However, a minority sometimes
201
See supra Part II.C.

Id.
203
See supra Part II.F.
204
See supra Part III.A.
205
See supra Part III.C.
206
See supra Part III.D.
207
See supra Part III.G.
208
See supra Part III.F.
209
See supra Part III.H.
210
See supra Part III.E.
211
See supra Part III.J.
212
See supra note 206.
213
See supra Part IV.
202
480
[Vol. 25
feel free to ignore applicable law in favor of their own sense of equity and
fairness.214
9. Experienced arbitrators report higher rates of settlement of arbitrated
cases in recent years. Estimated rates of settlement vary greatly, as do
perspectives on the arbitral role in teeing up a case for settlement.215
10. Experienced arbitrators are branching out to embrace other roles in the
resolution of disputes, including through service as non-binding or
advisory arbitrators, early neutral evaluators, and participants in early case
assessment. Many also act as mediators.216
11. In evaluating the impact of major trends on arbitration, experienced
arbitrators focused on concerns associated with the cost, length and
efficiency of arbitration and dispute resolution.217
12. In the coming decade, experienced arbitrators expect increased use of,
among other approaches: mediation, customized dispute resolution,
streamlined or fast track arbitration, arbitrations before a sole arbitrator,
multi-step processes, and online arbitration.218
Although we may still perceive the realities of commercial arbitration as
through a glass, darkly, the CCA/Straus Institute Survey is an important step
toward lifting the veil and illuminating this continuously evolving sphere of
activity.
214
See supra Part VI.

See supra Part VII.
216
See supra Part VIII.
217
See supra Part X.
218
See supra Part XII.
215

Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators

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Thomas J. Stipanowich and Zachary P.

Arbitration in Evolution: Current Practices and

Legal Studies Research Paper Series

Electronic copy available at: http://ssrn.com/abstract=2519196

ARBITRATION IN EVOLUTION: CURRENT PRACTICES AND

INTRODUCTION ....................................................................................... 396

II. SURVEY GROUP PROFILE...................................................................... 401

Electronic copy available at: http://ssrn.com/abstract=2519196

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

V. HEARING MANAGEMENT ..................................................................... 452

See Thomas J. Stipanowich, Reflections on the State and Future of Commercial

Electronic copy available at: http://ssrn.com/abstract=2519196

Moreover, growing numbers are seeking to promote themselves as advocates

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

communicate online, en masse, on a daily basis, sharing perspectives on diverse

Herbert Smith Freehills Dispute Resolution Blog, http://hsfnotes.com/arbitration (last

respondents arbitration practice is on business disputes, they also reflect

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

arbitrators, including strategies for addressing dispositive motions and pre-hearing

See infra Part II.A.

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

Chart B. Arbitrator Gender

These data are representative of the overall membership of the surveyed

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

See supra Chart A.

There is no question that in this era of judicialized arbitration greater

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

As depicted in Chart E below, Survey participants tended to have arbitrated a

Chart E. Total Cases as an Arbitrator

501 999 times

251 500 times

101 250 times

Dont Know, Other, N/A

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

501 999 times

251 500 times

101 250 times

Dont Know, Other, N/A

See infra text accompanying notes 60-63, Charts M, N, O and P.

251 499 times

101 250 times

Dont Know, Other, N/A

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

Chart H. Cases as Arbitrator during Previous Ten Years (By Gender)

101 250 times

Dont Know, Other, N/A

E. Current Professional Status and Activity

Chart I. Current Working StatusFull-Time vs. Not Full-time

Survey respondents reflect current trends toward extended working lives.56

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

Chart J. Breakout of Arbitrators Not Working Full-Time

Respondents were also asked what proportion of their professional working

As all open-ended responses were able to be interpreted as numerical responses,

Chart K. Practice as Arbitrator as Percentage of Working Time

Percentage of Work Time

Chart L provides a comparison of portions of work time devoted to service as

THE AMERICAN REVIEW OF INTERNATIONAL ARBITRATION

Chart L. Percentage of Time Devoted to Service as

Semi-retired / work occasionally

One noteworthy result regarding participants professional statuses and

Chart M. Perceived Sufficiency of Work as Arbitrator

A lot less work than I would like

Somewhat less work than I would like

A sufficient amount of work