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Arbitrator Submitting Questions

Tuesday, April 14, 2026 8:38 PM | Anonymous

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Should an arbitrator submit questions dealing with specific issues to the parties that he/she wants briefed? Should the arbitrator include specific cases that the parties did not refer to in their post-hearing briefs?  If the Tribunal is very divided, is it the Chair’s obligation to include the separate questions of the panelists in the minority?

What are your thoughts?


Comments

  • Wednesday, April 15, 2026 11:38 AM | Joseph A Del Sole
    Yes to all three questions.
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    • Thursday, April 16, 2026 9:00 PM | Thomas Levak
      No. I stay out of the cases.
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  • Wednesday, April 15, 2026 11:39 AM | Lee Weintraub
    I always ask the parties at the end of a final hearing to brief whatever issues may be on my mind. I'm sure the parties appreciate knowing what the arbitrator may be considering and I certainly appreciate having their perspectives and cites to consider as to issues concerning me
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  • Wednesday, April 15, 2026 11:49 AM | Oreste R. Ramos
    I would answer yes to the three questions. With regards to the second question, however, I'd be reluctant to do so if it's a case that was not cited by any of the parties at any point. This practice may clash with the principle of arbitrators not performing independent research.
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    • Wednesday, April 15, 2026 12:38 PM | Edward Moss, Colorado
      To any extent that the ABA Model Code of Judicial Conduct is relevant to arbitration ethics, Rule 2.9(C) only prohibits a judge from conducting independent FACTUAL research. There has never been a prohibition against independent LEGAL research.
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  • Wednesday, April 15, 2026 11:52 AM | Ric Kracht
    Should an arbitrator submit questions dealing with specific issues to the parties that he/she wants briefed? IN MY OPINION, YES, SO LONG AS THE QUESTION DOES NOT IMPLY A POSITION OR CONCLUSION.
    Should the arbitrator include specific cases that the parties did not refer to in their post-hearing briefs? YES, BUT ONLY IF THE CASE(S) ARE DISPOSITIVE OF THE ISSUE(S) If the Tribunal is very divided, is it the Chair’s obligation to include the separate questions of the panelists in the minority? YES, BUT SUBJECT TO THE ABOVE QUALIFICATIONS.
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    • Wednesday, April 15, 2026 12:13 PM | Kevin Sido
      I agree with Mr. Kracht's comments. I think it is incumbent on the Chair to include the minority panelist; after all, further discussion might just illuminate an issue that changes the vote. As to submitting specific cases to the parties, recall that counsel for the parties might not be as familiar as the arbitrator in the governing law. I don't think the arbitrator is a mere umpire only calling balls and strikes.
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    • Wednesday, April 15, 2026 1:32 PM | Rebecca Bowman, Esq., P.E., D.F.E. (NAFE #1153)
      Of all the responses, this is the most correct one I read. Let me rephrase. This is the response with which I most strongly agree.
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    • Thursday, April 16, 2026 9:02 AM | Dustin Hecker
      Agreed. The parties deserve to know in advance what issues likely would be dispositive and to have the opportunity to argue their points. I frequently ask questions at the end of the evidence so counsel know what issues I see and therefore they should address in their post-hearing briefs. I have even done so after receiving the parties’ briefs on a motion or the final testimony when I think both sides have missed something that I see as important. And, I will confess, occasionally they convince me the issue that I saw is not significant or that I missed something. However, at least in typical case where counsel is involved, I would not ask a party to address an issue that the other side has argued if the responding party failed to address it in its brief. There are many reasons why they may not have, and in this case they made a decision (or neglected) to address something they could have addressed. That’s their choice.
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  • Wednesday, April 15, 2026 1:15 PM | Sigmund Schutz
    Yes. It may be appropriate to identify the arbitrator who is asking the questions, however. Or schedule an oral argument for live Q&A.
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  • Wednesday, April 15, 2026 1:24 PM | Anonymous
    Should an arbitrator submit questions dealing with specific issues to the parties that he/she wants briefed? Yes for legal issues associated with facts as asserted by the parties at the hearing.

    Should the arbitrator include specific cases that the parties did not refer to in their post-hearing briefs? Not for substantive issues. The arbitrator is not a judge and is limited to review what is presented in the course of the arbitration by the parties. If there is a question that needs answering, then use the first question asked to have briefs performed by the parties.

    If the Tribunal is very divided, is it the Chair’s obligation to include the separate questions of the panelists in the minority? All questions regarding application of law to facts presented should be included for briefing by the parties.
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    • Wednesday, April 15, 2026 1:37 PM | Robert L Arrington
      I think all three are appropriate.
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  • Wednesday, April 15, 2026 5:06 PM | Judge Richard B. Klein (ret.)
    I share the views of the majority that "yes" is generally the appropriate answer to all three. I might say "it depends" on the question about bring up a case that nobody cited, but I probably would. Maybe it's my bias as a former appellate court judge.
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  • Wednesday, April 15, 2026 6:27 PM | Steven Schwartz
    At the end of the hearing, I typically tell the advocates the factual and legal issues that I see as central to the dispute. I frequently ask them to brief whether certain cases are applicable. I tell them that they are free to raise any other factual or legal arguments.
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  • Thursday, April 16, 2026 12:04 PM | Tracy Steedman
    As an arbitrator, in reviewing post hearing briefs in one matter, both counsel had failed to cite to a case that was dispositive on one of the claims in a construction case. Neither counsel was a construction lawyer and neither counsel was familiar with the case. The dispute was a contract case and the Claimant had made a negligence claim. When I asked them to brief the case, Claimant counsel got angry and Respondent counsel did not seem to care or truly understand the case. The end result was it did not matter as to the amount of damages awarded but I felt I needed to address/dismiss the negligence claim with clarity.
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