Whether you are an advocate representing clients in alternate dispute resolution (ADR) or serving as a neutral arbitrator or mediator, it is critical to understand the disclosure rules. All stakeholders in the ADR process want to assure that parties participating have the requisite information to have confidence in the fairness of the process. Although the roles of arbitrators and mediators are different, neutrals in either capacity need to make fulsome disclosures so their impartiality can be adequately assessed. As arbitrators render binding decisions, they and the parties want to avoid challenges to an award due to disclosure deficiencies. Although mediators generally do not issue binding determinations, but try to facilitate the parties’ negotiations, they too want the decisionmakers and their advisers to trust that the conciliatory efforts are not influenced by concealed relationships. On the flip side, counsel for the parties want to provide sufficient information about parties, witnesses, experts and counsel themselves so potential neutrals can conduct a meaningful inquiry for disclosure purposes. They also want to conduct a meaningful assessment of potential neutrals to identify potential or perceived conflicts that could jeopardize the process or any resolution derived from engaging in ADR.
The Importance of Party Input in Identifying Potential Conflicts
Garbage in; garbage out. The quality of the neutral disclosure process starts with the adequacy of the information provided to the ADR professional when approached for a potential appointment. That information serves as the yardstick against which a potential arbitrator or mediator evaluates whether the individual, their family members, colleagues or organizational affiliates, have relationships that could be perceived as reflecting an actual or potential bias. The more exhaustive the input, the more likely it will reveal possible issues or confirm that none exist. The process may be governed by the administrative organization overseeing the matter, such as the American Arbitration Association (AAA), CPR Institute for Dispute Resolution (CPR), a court, bar association or other organization. In the absence of a sponsoring entity, the parties or the neutral candidate my propose or agree on the protocols for assessing potential disqualifying interests. Whatever the methodology, parties seeking ADR assistance should provide candidates with financial, personal and business affiliations that might bear on how parties will perceive the potential neutral’s independence, particularly if the party is unhappy with the result. Parties can request additional information beyond what the procedures call for or for follow up information if a disclosure raises concerns. The information provided by the parties in soliciting a neutral’s disclosures impacts the usefulness of the response. If the parties do not provide sufficient information, it is more likely an issue may be overlooked.
