Learn · Choosing the neutral
How to choose an arbitrator.
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The arbitrator is the most consequential choice in the proceeding.
In litigation, the judge is assigned. In arbitration, the parties choose the decider. That choice shapes everything that follows: the preliminary hearing, the scope of discovery, the conduct of the hearing, and the quality of the award. It warrants more diligence than most parties give it.
How do you choose an arbitrator?
In an AAA commercial arbitration, the American Arbitration Association sends each side a list of proposed neutrals; each party strikes unacceptable candidates and ranks the rest, and the AAA appoints the highest mutually acceptable name. The parties may instead designate an agreed neutral by joint stipulation, on or off the AAA roster. Before ranking, counsel typically weigh five things: subject-matter fit with the actual record in the case, disclosed relationships and the appearance of impartiality under the AAA Code of Ethics for Arbitrators in Commercial Disputes, availability and scheduling discipline, the quality and reasoning of the candidate’s written awards, and how the candidate stays current in any technical subject matter the case turns on.
01 — The AAA list process
How does the AAA strike-and-rank process work?
The AAA provides each party with a list of proposed neutrals. Each party may strike unacceptable candidates and rank the remaining names. The AAA appoints the highest-ranked name that is mutually acceptable. If no name is mutually ranked, the AAA appoints. Parties may also agree by joint stipulation to designate any qualified neutral — whether on the AAA roster or not — without going through the list process.
The list process is administered under the AAA Commercial Arbitration Rules, and it is why vetting matters: by the time the list arrives, the decision counsel actually control is which names to strike and in what order to rank the rest.
02 — Selection criteria
Six things counsel weigh when evaluating a neutral.
- 01
Subject-matter fit
The most common selection mistake is choosing a credential (years of practice, institutional affiliation) over substantive fit. An arbitrator who has heard hundreds of contract disputes may be poorly equipped to evaluate source-code evidence, parse a cybersecurity incident report, or assess the technical opinions of competing experts. Subject-matter fit means the arbitrator can engage with the technical record without relying entirely on expert translation — and can tell when an expert's opinion is reliable and when it is advocacy dressed as analysis.
- 02
Neutrality and appearance of impartiality
Arbitrators are obligated to disclose any relationship — professional, financial, or personal — that a reasonable person would consider likely to affect their impartiality. The AAA Code of Ethics for Arbitrators in Commercial Disputes sets out the disclosure obligations and the disqualification standard. Counsel should evaluate not only disclosed relationships but the broader network: prior representations, law firm ties, academic affiliations, and published positions on contested legal questions. Opposing counsel will scrutinize the same record; disclose proactively.
- 03
Availability and scheduling discipline
An arbitrator who accepts more matters than their calendar can absorb produces scheduling delays, last-minute continuances, and awards that arrive long after the hearing record has grown cold. Ask directly: how many active matters does the candidate currently have? What is their typical award turnaround after a merits hearing? Do they hold parties to briefing and production deadlines? Availability is one of the few selection criteria a party can verify by asking a direct question and comparing the answers.
- 04
Award-writing discipline
A reasoned award must explain what was decided and why, in terms the losing party — and, if the award is challenged, a reviewing court — can follow. Award-writing quality varies widely. Request sample or publicly available awards written by the candidate. Assess whether the reasoning is clearly organized, whether the analysis is responsive to the arguments actually presented, and whether the factual findings are traceable to the record. The award is the arbitrator's primary deliverable; it warrants the same diligence as any other written work product.
- 05
Technical fluency for technology and cyber matters
In disputes involving source code, algorithmic systems, digital forensic evidence, or cybersecurity incident analysis, the arbitrator's fluency with the record is not optional: a decider who cannot follow how software executes or how a network intrusion is traced will struggle to weigh competing technical narratives, even with experts on both sides. Ask how the candidate stays current in the technical subject matter — whether through practice, teaching, publication, or credentialing — and what that means for how they will handle the expert record: how they expect to be educated on the technology, whether they will permit expert conferral or concurrent expert testimony, and how they will resolve competing expert opinions in the award.
- 06
Vetting the record
The AAA list process surfaces candidates; the vetting happens before you rank them. Review the candidate's published profile and roster listing, any published decisions, their fee schedule, and their availability. Interview references who have appeared before them — both winning and losing counsel. Ask whether the arbitrator controlled the hearing room, whether preliminary and pre-hearing orders were clear and timely, and whether the award addressed the arguments actually presented.
03 — Related guides
Further reading.
- The processHow AAA arbitration works The eight stages of a AAA commercial arbitration, from the agreement to arbitrate through the award.
- The trade-offsArbitration vs. litigation: pros and cons Where arbitration outperforms litigation, where it does not, and how to decide which forum fits a dispute.
- The timelineHow long AAA arbitration takes The stages that set the schedule and the factors that make a matter faster or slower.
- The languageModel clause & stipulation language Ready-to-adapt language for naming an arbitrator in a new agreement or a pending AAA matter.
The AAA Arbitration Toolkit — a choosing-an-arbitrator checklist and model language, free
04 — Frequently Asked Questions
Common questions about arbitrator selection.
What should I ask an arbitrator's references?
Ask how the arbitrator managed the preliminary hearing and pre-hearing orders: were they clear, timely, and proportionate? How did the arbitrator handle contested evidentiary issues? Did the arbitrator ask questions that showed engagement with the technical record? Was the award well-reasoned and responsive to the arguments presented? How long did the award take after the close of the hearing record? References from both winning and losing counsel are more informative than one-sided endorsements.
Does subject-matter expertise always outweigh other criteria?
Not always, but it should be weighted heavily in technical disputes. A generalist arbitrator of unimpeachable neutrality and excellent process management may be preferable to a narrow specialist with scheduling problems or known positions on contested legal questions. The goal is a balanced assessment across subject-matter fit, neutrality, availability, and award discipline — not optimization of any single factor.
What are the most common arbitrator selection mistakes?
Selecting on reputation or institutional affiliation alone, without evaluating subject-matter fit. Failing to research disclosed relationships and the broader professional network. Not checking references from opposing counsel who appeared before the arbitrator and lost. Underweighting availability — an arbitrator who is perpetually over-scheduled produces avoidable delay. And treating the selection as a low-stakes administrative step rather than a strategic decision with long-term consequences for the proceeding.
Can both sides agree on the same arbitrator?
Yes, and in many proceedings this is the most efficient path. If both sides identify a neutral they trust and are willing to accept, they may jointly designate that person to the AAA by stipulation. The AAA then proceeds with the agreed-upon arbitrator, subject to the standard disclosure and confirmation process. A joint designation skips the strike-and-rank process entirely.
When in the case does arbitrator selection happen?
Selection follows the demand and answer and precedes the preliminary hearing, where the arbitrator and the parties set the schedule for the rest of the matter. The stage-by-stage guide to how AAA arbitration works sets out where selection sits in the sequence.
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Sources
- American Arbitration Association, AAA Commercial Arbitration Rules and the Code of Ethics for Arbitrators in Commercial Disputes.
Provided for general information about AAA arbitration only; not legal advice.
Curated by Daniel B. Garrie, arbitrator. About