ARBITRATING WITH THE AAA: NOT THE AUTO CLUB by Durward W. Parkinson, Esq. When I mentioned to my wife that I had been approved as a commercial arbitrator with the “AAA”, she responded by asking (with a somewhat crinkled brow) what type of matters would I be handling on behalf of the famous automobile club? This is a fair question given that most people know about the AAA for automobiles -- but not about the American Arbitration Association also known as the “AAA”. Certainly others have been confused. (There is another “AAA” that pops up on Google which is the “Amateur Astronomers Association of New York.) This article will briefly explore the basics about AAA arbitration and my path to becoming a neutral on the AAA commercial arbitration (and mediation) roster. A disclaimer: I am not writing this as a spokesman for AAA. For more information about AAA, please see their website at adr.org. For over 30 years I have been in private law practice based in York County. I am the managing partner and a founding member of Bergen & Parkinson, LLC. Like many others starting practice my case load ranged from “soup to nuts” covering a wide variety of legal areas. More recently practice has focused on real estate, land use, municipal and business disputes. Since the late 1980’s, I have participated, as an advocate, in mediations and arbitrations. “ADR” became the buzz and it was easy to see early on the advantages of ADR compared with the log slog that usually goes with litigation. Gradually my role in these matters shifted from advocate to neutral. I enjoy the challenge of working on difficult to settle mediation matters -- often involving strong personalities. Arbitration is newer to me and requires mindfulness about creating an efficient and fair process and issuing a well-reasoned decision. The decision does not have to be lengthy but must give the parties a clear understanding of the reasons for the outcome. Naturally I had heard of AAA and encountered contract language about AAA arbitration over the years. But my actual experience with the organization was limited. So I explored further and learned how much they have to offer parties in cases-- large and small -- offering a well honed and efficient process. The first step was getting approved by AAA as a neutral. This process took the better part of a year and involved a detailed application requiring 12 reference names. Thankfully I was able to provide all of the needed information. The training offered to its ADR neutrals is impressive. After the application process is completed, the neutral must complete two days of arbitration training. I chose training at the AAA office in New York City. Many extremely experienced practitioners were present from around the world along with a number of former judges. One lawyer from the New York area commented to me that there probably was not one person in the room who would not like to have Maine as their home base. Maybe he was just trying to make me feel better given all of the heavy hitters present. The training included simulated arbitration scenarios played by actors shown on flat screens in the conference room. Similar to law school this was followed by a Socratic question portion where you were asked what you would do in the situation. The training was fast moving and entertaining at the same time. Arbitrators are required to follow a strict Code of Ethics to uphold the integrity and fairness of the process. The Code recognizes the difference between arbitrators and judges. The Code makes this important distinction as follows: “Arbitrators, like judges, have the power to decide cases. However, unlike full-time judges, arbitrators are usually engaged in other occupations before, during and after the time they serve as arbitrators.” AAA requires that a detailed and continuing disclosure of any potential conflict of interest be signed by the arbitrator and provided to the parties. Following the arbitration, the arbitrator may not engage in a business or personal relationship with the parties for a reasonable length of time which “might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of the relationship or interest.” Any doubts are resolved in favor of disclosure. Arbitration is usually the result of a formal agreement of the parties before or after a dispute has arisen. Lawyers struggle with the appropriate arbitration language to insert into contracts or judgments. To assist with the drafting of arbitration clauses, AAA has developed a nifty device on its website called “ADR ClauseBuilder” found at clausebuilder.org. Through a series of simple questions, the site produces basic, tried and true arbitration or mediation clauses -- with the option to insert additional items such as the locale, governing law, discovery, remedies, appeals and attorney’s fees. AAA offers arbitration services nationwide. The range of expertise of AAA arbitrators is incredibly broad in a long list of subjects such as commercial, construction, governmental and consumer matters. Claims range from thousands of dollars to billions. Cases may be filed with AAA online or by calling their toll free number: 877-495-4185. A section of the website called “AAA Arbitration Roadmap” contains a good overview of the importance of managing arbitration time and expenses. An administrative fee schedule is also available on the website. Arbitrators are required to issue their decisions within 30 days of the close of the hearing. So I am “off and running” as an AAA arbitrator and mediator. I have been selected for my first arbitration which is scheduled for Boston in July. I am looking forward to working with this respected organization – but I am definitely not quitting my day job!
Posted on: Tue, 17 Jun 2014 14:30:15 +0000
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