ACR-GNY - When Wing Arbitrators Don’t Disclose: A Chair’s Dilemma

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When Wing Arbitrators Don’t Disclose: A Chair’s Dilemma
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When Wing Arbitrators Don’t Disclose: A Chair’s Dilemma

Tuesday, December 16, 2025 10:28 PM | Anonymous

Contract signing concept: Disclosure | Netsheria Legal articles

What happens when an arbitration chair learns during deliberations that the wing arbitrators have sat together on similar cases before and already hold strong views on the outcome—information that was never disclosed? How should the chair manage the dynamics and ensure a fair award process?

What are your thoughts?

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Comments

Thursday, December 18, 2025 4:14 PM | Jack Levin

Where any two of the arbitrators have sat together before in a similar case, it seems wise to disclose that to the third arbitrator whether or not they hold strong views on the issues. It should feel strange for two arbitrators to have such information and not share it well before the deliberations.

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- Thursday, December 18, 2025 4:33 PM | Lou Chang, Mediator-Arbitrator
  
  Aquarius, let the sunshine in! A very similar dilemma happened to me in a 3 person panel arbitration case. The parties and the arbitrators were from different state jurisdictions. During a recess, I observed one panel arbitrator sitting in the office of the attorney for one of the parties. This raised the question concerning the appropriate role of all of the arbitrators, party appointed and "neutral" third arbitrator. At that time, the law of the different state jurisdictions had different views concerning whether party appointed arbitrators were supposed to be neutral and independent or advocate arbitrators.
  I thought that the proper thing to do was to raise the issue first privately with all three of the arbitrators , then also raise the issue in the presence of the parties and all advocates. Upon presentation and disclosure of the matter, a general discussion was held to clarify the expectations of all of the arbitrators to serve independently and neutrally or whether the party appointed advocates could be advocate arbitrators.
  
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Thursday, December 18, 2025 4:30 PM | Gerald Harris

The Chair should require the wings to make disclosure, however belated, to the case manager who, in turn, should forward the information to the parties and give them an opportunity to opt to terminate the hearing and have a new panel selected, agree to excuse the wings and allow the Chair to make the award or agree to simply proceed as constituted.

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- Thursday, December 18, 2025 4:43 PM | Nancy Greenwald
  
  I agree with Gerald.
  
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  - Monday, December 22, 2025 5:00 PM | Thomas Hanrahan
    
    So do I. Yoiu have to assume this undisclosed connection will become known to the losing side, and then it's too late to give the parties a chance to fix this.
    
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Thursday, December 18, 2025 4:50 PM | Joseph A McManus

An initial reaction would be to contact the case manager and have the arbitrators make a disclosure. But since we have already had the hearings and are in deliberations this would be, at a minimum, an expensive and explosive situation. I believe the Chair should drive forward and take control of the drafting process and seek consensus for a unanimous award.

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Thursday, December 18, 2025 4:54 PM | Marie Lihotz

In an effort to avoid a problem, as Chair of the panel, where parties designated their chosen arbitrator, we held a pre-initial case management conference to discuss the issue. Each arbitrator agreed neutrality controlled and counsel was so advised at the CMC, along with a prohibition on ex parte communication being placed in the order.

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Thursday, December 18, 2025 4:54 PM | Marie Lihotz

In an effort to avoid a problem, as Chair of the panel, where parties designated their chosen arbitrator, we held a pre-initial case management conference to discuss the issue. Each arbitrator agreed neutrality controlled and counsel was so advised at the CMC, along with a prohibition on ex parte communication being placed in the order.

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Thursday, December 18, 2025 5:08 PM | Robert Prather

Chair does not address with Wings. Alone, Report to case manager to investigate and resolve disclosure issues, if any. If existing panel is to proceed, Chair will earn its keeps in trying to keep all objective and focus on this case and facts.

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Thursday, December 18, 2025 5:29 PM | Sheila Carpenter

As a few colleagues have noted, this is not something to handle solo. If I have an experienced case manager, my first call is to him or her. If not, I would call my VP for advice and then the case manager. If the wings are party-appointed, perhaps the parties are already aware of the issue and I’m worried about nothing. But if not, disclosure issues are for AAA management, not the Chair.

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Thursday, December 18, 2025 6:03 PM | Jack Levin

I see distinct issues here. (1) It must be assumed that if two arbitrators sat together previously, that was disclosed as part of the appointment process. (2) I am unaware that the nature of or the issues involved in a prior matter need to be disclosed, but surely the parties can ask this question of any arbitrator whether or not two have sat together. (3) Is any arbitrator obliged to decline to serve or to disclose that they hold strong views? On the "outcome" of the matter? Surely, yes. But on a particular issue? We all see issues come up repeatedly in commercial cases, e.g., whether a fraud-based claim can accompany a contract claim. We may think we know the law and the probable outcome. But is that something that affects fairness and impartiality? Would anyone expect us to disclose?

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Friday, December 19, 2025 11:16 AM | Thomas P. Valenti

If an arbitration chair learns during deliberations that wing arbitrators previously sat together and now hold undisclosed strong views, it raises serious concerns about impartiality and procedural fairness. Arbitrators have a continuing duty to disclose prior relationships that could create an appearance of bias. The chair should first privately clarify the extent of the prior collaboration, then raise the issue during deliberations to ensure all arbitrators are independently assessing the case. If concerns persist, the chair should document the issue and consider disclosing it to the administering institution or parties, especially if it may impact the enforceability of the award. Ignoring the issue risks a challenge to the award for procedural irregularity or arbitrator misconduct. Best practice, per AAA guidelines, is to uphold transparency, neutrality, and independent decision-making. The chair must act to preserve the legitimacy of the award and ensure parties' trust in the arbitration process is maintained.

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Saturday, December 20, 2025 4:21 AM | Geoffrey BH

This is precisely the position that exists when two arbitrators appoint an umpire or under the earlier practice of the United States {of America).

The presiding Arbitrator would be polite to tell the two wing men (either of whom may be women - I prefer ladies - the term wing men here is gender-neutral) of what has been discovered. Then the Presiding or Third Arbitrator might say,

"That said, it is our duty to put everything else out of our mind and decide on what we have heard. I will hear what you say and, If you cannot agree, I will decide.

For the sake of our Award, however, we owe it to the parties to try to agree a collegiate decision (or decisions) if we can."

More words, perhaps, but that would be my gist.

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