A is for ARBITRATION (Continued from page 14)
football game, there will be post trial motions and, more probably than not, an appeal to the Court of Special Appeals. If you decide that a trial is not in your
client’s best interest, use your creativity to fashion a process that will best resolve your client’s dispute. There are a variety of weapons in the alternative dispute reso- lution (ADR) arsenal, such as mediation, facilitation and neutral fact finding. You should at least consider whether using one of these non-lethal, small arms types of ADR will resolve your client’s conflict before unlimbering the heavy artillery of binding arbitration. You may, of course, have no choice - you may be contractu- ally required to arbitrate. Arbitration generally provides a cheaper and a quicker resolution of your client’s case than a trial. It also offers a confidentiality that a public trial cannot provide. For example, physicians and at- torneys in malpractice cases, even if they don’t believe they did anything wrong, can avoid the notoriety of unhappy patients and clients for whom they obtained bad results.
The selection of an arbitrator or arbitrators
There is an old saying that getting the right judge is more important than get- ting the right lawyer. Picking the right jury can often mean the difference between winning and losing your case. In arbitra- tion, selecting the right decision maker is critical. You and your client in all prob- ability are going to be stuck with the arbitrator’s award. Your choices of the ar- bitrator or arbitrators may be limited. It may be pre-determined by a mandatory provision in the contract. Under the MUAA, § 3-211, “if the arbitration agree- ment provides a method of selection of the arbitrator, this method shall be fol- lowed.” Under § 3-211, supra, if the mandatory arbitration provision fails to provide a method for the appointment of arbitrators, a party may petition the court for the appointment of an arbitrator or arbitrators. Even if there is a pre-deter- mined method for the selection of the arbitrator, the litigants can by agreement waive such provision and decide upon a different method of selection. I have never been privy as to why I
have been selected or rejected as an arbi- trator. Many of you may therefore have
better insight than I in selecting an arbi- trator. It seems fundamental, however, that you should make an investigation of the proposed arbitrator or arbitrators be- fore agreeing to him, her or them. Don’t be too shy to ask for a resume. Feel free to make inquiries of judges and your fellow lawyers as to the proposed arbitrator’s pro- clivities and biases. Depending upon the nature of the case, there may be data bases that are maintained by insurance compa- nies and various organizations that may help you in this regard.
It is vitally im-
portant that you find out whether the proposed arbitrator has a pre-disposition that might adversely your client’s case. Does the potential arbitrator␣ seem to rou- tinely give more weight to the opinions␣ of particular examining physicians?␣ Does he or she determine the non-economic dam- ages simply by multiplying the special damages by three? A panel of arbitrators, usually three, can help insure neutrality and a balanced award, but this is often too expensive for the average case. Generally speaking, you should find an arbitrator that has some technical knowledge of the subject matter of the dispute. Arbitration associations do pro- vide list of arbitrators in specialized fields. There may, however, be a case where you
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Trial Reporter
Summer 2003
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