Arbitrator Selection Process: Panels, Disclosures, and Challenges

The arbitrator selection process runs on a simple hierarchy: the parties can pick someone by direct agreement, work through a strike-and-rank list supplied by an institution like the AAA or JAMS, or fall back on court appointment under Section 5 of the Federal Arbitration Act when the agreed method fails.¹ Whatever the path, the arbitrator you end up with shapes the entire proceeding, and a poor choice is hard to undo once the case begins.

Picking an Arbitrator by Direct Agreement

The cleanest path is mutual agreement. Both sides identify a single person they trust, confirm availability, and move on. This works best when the contract already names an arbitrator or when the dispute involves a specialized industry where only a handful of qualified people exist.

Direct agreement gives you the most control, but it depends on cooperation the parties often no longer have. If the relationship has soured enough to need arbitration, agreeing on the decision-maker can be its own fight. That’s where institutional lists come in.

How the Strike-and-Rank List Works

Most institutional arbitrations use some version of strike-and-rank. The administering body sends both parties an identical list of candidates with biographical information. Each party crosses off names they find unacceptable, ranks the rest, and returns the list. The candidate with the best combined ranking gets appointed.

The details vary by provider. Under the AAA’s Commercial Arbitration Rules, the list usually contains ten names and parties have 14 calendar days to strike and rank.² JAMS provides at least five names for a sole arbitrator, allows each side to strike two, and gives a seven-day response window.³ In federal labor disputes administered through the Federal Mediation and Conciliation Service, each party submits a numbered ranking and the person with the lowest combined number is appointed.⁴

Neither party sees which names the other side struck. You rank based on your own assessment. If the list doesn’t produce a match, the institution appoints someone from its broader roster.

Selecting a Three-Member Panel

Larger or more complex disputes often use a three-arbitrator panel. The common arrangement gives each party the right to nominate one arbitrator, and those two then jointly select a third who serves as chair. If they can’t agree on a chair, the institution appoints one.

The AAA treats multi-party situations differently. When multiple claimants or respondents don’t line up neatly into two sides, the AAA may appoint all three arbitrators rather than letting each “side” pick one.² JAMS provides at least ten candidates for a tripartite panel and allows each party to strike three names.³

One detail catches people off guard. Unless the agreement specifically says otherwise, party-appointed arbitrators must meet the same impartiality and independence standards as the chair. AAA rules make this explicit: party-appointed arbitrators are presumed neutral unless the agreement says they may serve as non-neutral advocates.⁵ The arbitrator you nominate is not your advocate.

When the Institution or a Court Appoints

Institutions serve as a backstop when party selection stalls. The AAA will directly appoint an arbitrator when the strike-and-rank list fails to produce a match, when a party misses the 14-day response deadline, or when the agreed method breaks down.² JAMS follows a similar approach when its ranking process yields no result.³ These appointments draw from pre-screened rosters. The AAA’s National Roster typically requires 10 to 15 years of relevant professional experience for attorneys and industry professionals, or at least 10 years on the bench for former judges.⁶

Court appointment is the last resort. Under Section 5 of the FAA, a court steps in only after the contractual method has failed, either because the agreement didn’t specify a method, a party refused to follow the agreed method, or there’s been what the statute calls a “lapse” in the naming process.¹ The requesting party generally has to show it has exhausted the available mechanisms first. A court-appointed arbitrator serves with the same authority as one the parties chose themselves. Unless the agreement says otherwise, the default under the FAA is a single arbitrator.

What Happens If the Other Side Stalls

Stonewalling doesn’t work. Both major institutions treat silence as acceptance. Under AAA rules, if a party fails to return the strike-and-rank list within 14 days, every name on the list is deemed acceptable.² JAMS applies the same principle within its seven-day window.³

If a party was supposed to directly appoint an arbitrator under the agreement and fails to do so, the AAA will make the appointment itself after notice and a 14-day wait.⁵ Where no institution is involved, the other party can petition a court under Section 5. No single party can derail the process by refusing to participate.

Disclosures the Arbitrator Owes You

Arbitrators have an ongoing duty to disclose anything that might raise questions about their ability to decide fairly. The Code of Ethics for Arbitrators in Commercial Disputes, developed jointly by the AAA and the American Bar Association, sets the floor. Canon I requires an arbitrator to accept appointment only if fully satisfied they can serve impartially, independently from the parties and potential witnesses, and with enough competence and availability to handle the case properly.⁷

The scope of what must be disclosed is broad: prior professional or personal relationships with any party or counsel, financial interests in the outcome, business dealings with parties, and anything else a reasonable person might view as creating an appearance of bias. The duty does not end at appointment. A new potential conflict discovered mid-case must be disclosed promptly.⁷

Disclosure doesn’t automatically disqualify anyone. If an arbitrator reveals a potential conflict and both parties consent to proceed, the appointment stands. Trouble arises when something that should have been disclosed wasn’t, because that becomes grounds to challenge the arbitrator or later attack the award.

Vetting the Candidates on Your List

Don’t rely on the biographical sketch alone. When you receive a list, you have a limited window to do real research, and that research directly affects the quality of your arbitrator.

Start with each candidate’s professional background and the specific subject matter of their practice or industry experience. The AAA requires roster members to demonstrate professional recognition, relevant ADR training, and commitment to impartiality and objectivity.⁶ Those are minimum thresholds for roster membership, not guarantees of fit for your case.

Look at track record where you can. In securities disputes, FINRA’s Arbitration Awards Online lets you search past awards by arbitrator name for free.⁸ For other disputes, published awards are harder to find since arbitration is generally private. Ask colleagues in your industry who have appeared before the candidate. Talk to attorneys who have handled cases with that arbitrator. Reputation for case management matters. An arbitrator who lets proceedings drag on for years costs you money regardless of outcome.

Practical questions matter too. Confirm the candidate’s availability aligns with your timeline and ask about fee structures upfront. A perfect subject-matter fit who cannot start for eight months may not serve you.

Challenging an Arbitrator After Appointment

You can challenge an arbitrator when circumstances raise justifiable doubts about impartiality or independence, or when they lack qualifications the agreement requires. Common triggers include an undisclosed business relationship with a party, a financial interest in the outcome, or a close personal connection with a key witness.

The process depends on which rules govern. Under UNCITRAL rules, common in international arbitration, you notify the other party, the challenged arbitrator, and any co-arbitrators in writing, stating your reasons. If the other side doesn’t agree to remove the arbitrator and the arbitrator doesn’t withdraw voluntarily, the appointing authority decides within 30 days.⁹ Under AAA and JAMS rules, you submit the challenge to the institution, which decides.

Timing matters. You generally must challenge as soon as you learn the disqualifying facts. Discovering a conflict, staying silent, then raising it after losing rarely persuades a court. A party can only challenge its own appointed arbitrator for reasons it learned about after the appointment; you can’t nominate someone and then try to remove them based on facts you knew all along.⁹

One boundary worth knowing: federal courts generally will not intervene to remove an arbitrator before the case is decided. The FAA’s vacatur provision applies only after a final award. Mid-proceeding challenges go through the institution’s rules, not a court injunction.

Evident Partiality After the Award

Selection problems can echo after the hearing ends. Under Section 10 of the FAA, “evident partiality” by an arbitrator is one of only four grounds a losing party can use to ask a court to vacate an award. The others are corruption or fraud, arbitrator misconduct during the hearing, and exceeding the scope of the arbitrator’s authority.¹⁰

The most common path to vacatur involves undisclosed conflicts. A failure to reveal a business relationship with a party, a financial interest in a related entity, or a prior engagement with one side’s counsel can all support a finding of evident partiality, not because the relationship proves actual bias, but because hiding it undermines the integrity of the process. This is why the disclosure obligations carry so much weight during selection. An arbitrator who discloses everything and gets consent from both parties is largely insulated from later partiality attacks. One who stays quiet about a relationship that surfaces after the award has handed the losing party a ready-made basis to attack the result.¹⁰

1
Office of the Law Revision Counsel. 9 USC 5 – Appointment of Arbitrators or Umpire
2
American Arbitration Association. AAA Commercial Arbitration Rules – Rule R-12
3
JAMS. JAMS Comprehensive Arbitration Rules and Procedures – Rule 15
4
eCFR. 29 CFR 1404.12 – Selection by Parties and Appointment of Arbitrators
5
American Arbitration Association. AAA Commercial Arbitration Rules – Rule R-13
6
American Arbitration Association. Qualification Criteria for Admittance to the AAA ICDR Panel of Arbitrators and Mediators
7
American Arbitration Association. Code of Ethics for Arbitrators in Commercial Disputes – Canon I
8
FINRA. Arbitration Awards Online
9
ICSID. Challenge of Arbitrators – UNCITRAL Arbitration
10
Office of the Law Revision Counsel. 9 USC 10 – Same; Vacation; Grounds; Rehearing