Selecting an Arbitrator: Methods and Considerations

The selection of an arbitrator shapes virtually every downstream element of an arbitration proceeding — from the pace and cost of hearings to the substantive quality of the final award. This page covers the principal methods by which parties choose arbitrators, the institutional frameworks that govern those methods, the factors parties weigh during selection, and the boundaries that separate permissible party autonomy from procedurally disqualifying conduct. The subject applies across commercial arbitration, employment arbitration, and other dispute categories that proceed under U.S. or international rules.

Definition and scope

Arbitrator selection is the procedural phase in which the parties to a dispute — or an administering institution acting on their behalf — identify and confirm the neutral decision-maker or panel that will hear and resolve the matter. The selection phase is distinct from the substantive hearing phase, though defects in selection can void an award after the fact under standards set out in the Federal Arbitration Act (FAA), 9 U.S.C. § 10(a)(2), which authorizes vacatur where "evident partiality or corruption in the arbitrators" is demonstrated.

The scope of party control over arbitrator selection depends on three layers of authority:

1. The governing arbitration agreement — the document establishing the parties' consent and any agreed selection mechanism (see arbitration agreements and arbitration clause drafting).
2. Institutional rules — rule sets published by bodies such as the American Arbitration Association (AAA) and JAMS that impose default selection procedures when the parties have not specified their own.
3. Applicable statute — including the FAA at the federal level and state analogues enacted under the Uniform Arbitration Act or the Revised Uniform Arbitration Act.

Arbitrator qualifications and arbitrator neutrality and disclosure are closely related topics that govern what an arbitrator must reveal and what disqualifying conflicts prevent appointment.

How it works

Primary selection methods

The four main mechanisms for selecting arbitrators operate along a spectrum from pure party control to full institutional delegation.

1. Party agreement (direct appointment): Both parties agree on a single arbitrator by name or by jointly reviewing a short list without institutional involvement. This method is common in high-value commercial disputes where parties have prior knowledge of qualified practitioners.

2. List-and-strike (ranking method): The administering institution provides a list of candidate arbitrators — typically 7 to 15 names — with accompanying biographical information. Each party independently strikes names it finds unacceptable and ranks the remaining candidates. The institution appoints the highest-mutually-ranked candidate. The AAA Commercial Arbitration Rules (Rule R-12) and JAMS Comprehensive Arbitration Rules (Rule 12) both use list-and-strike as the default mechanism.

3. Party-appointed arbitrators (tripartite panels): In a 3-arbitrator proceeding, each party appoints 1 arbitrator and the 2 party-appointed arbitrators jointly select a neutral chair. This structure appears frequently in international arbitration and in large domestic commercial cases. The AAA defines this structure in Rule R-13.

4. Administrative appointment: When parties cannot agree and the list-and-strike process fails to produce a mutually acceptable candidate, the institution appoints directly. JAMS Rule 15 and AAA Rule R-14 both authorize this fallback.

Steps in the selection process

The process under a typical institutional ruleset proceeds as follows:

1. Arbitration demand is filed and an administrative case is opened (see initiating arbitration).
2. The institution confirms the number of arbitrators required — typically 1 for claims under a threshold dollar amount and 3 for larger disputes (AAA Rule R-16 sets the default threshold at $1,000,000 for complex commercial matters, per AAA Commercial Arbitration Rules).
3. The institution circulates a candidate list with disclosures already provided by each candidate.
4. Parties submit strikes and rankings within the deadline specified by the applicable rules.
5. The institution tabulates results, contacts the top candidate to confirm availability and absence of conflicts, and issues a formal appointment notice.
6. The appointed arbitrator issues any supplemental disclosures required under the relevant code of ethics.

Common scenarios

Single-arbitrator consumer disputes: In consumer contexts, consumer arbitration rules published by the AAA (Consumer Arbitration Rules, effective September 1, 2014, per AAA Consumer Rules) apply default selection procedures and restrict the fees a consumer must pay. A single neutral arbitrator is standard.

Three-arbitrator panels in securities disputes: FINRA Dispute Resolution Services uses a structured tripartite panel for claims exceeding $100,000, composed of 2 public arbitrators and 1 industry arbitrator, unless the claimant elects an all-public panel — an option available since the 2011 FINRA rule change (FINRA Rule 12401).

Labor arbitration under collective bargaining agreements: When a collective bargaining agreement (CBA) specifies arbitration, the parties frequently use the Federal Mediation and Conciliation Service (FMCS) roster or the AAA's labor panel. The FMCS maintains a roster of arbitrators governed by 29 C.F.R. Part 1404. See labor arbitration for sector-specific detail.

Construction disputes: The AAA Construction Industry Arbitration Rules establish a large, complex case procedure for disputes exceeding $1,000,000, typically resolved by a 3-member panel; smaller claims use a single arbitrator. See construction arbitration.

Decision boundaries

What parties can control

Parties retain broad autonomy to specify selection procedures in advance, subject to unconscionability limits examined in cases arising under the FAA (see unconscionable arbitration clauses). Permissible private ordering includes requiring arbitrators to hold specific professional credentials, limiting the candidate pool to members of a particular ADR organization, or mandating a tripartite structure regardless of claim size.

What parties cannot do

Party autonomy has defined outer limits. The FAA's vacatur grounds at 9 U.S.C. § 10(a) — and parallel grounds in the Revised Uniform Arbitration Act (RUAA § 23) — establish that an award may be set aside where:

• The arbitrator's selection was procured by corruption or fraud.
• An appointed arbitrator fails to make required disclosures and evident partiality is later demonstrated.
• A party-appointed arbitrator in a tripartite panel acts as a non-neutral advocate rather than as a decision-maker, where institutional rules require neutrality.

The AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes (2004 edition, revised) draws a critical distinction: neutral arbitrators are held to full impartiality standards requiring disclosure of any relationship that might "create a reasonable impression of possible bias," while non-neutral party-appointed arbitrators in certain contexts operate under a relaxed standard that permits ex parte contact with the appointing party prior to the neutral chair's selection. This contrast is addressed in depth under arbitrator neutrality and disclosure.

Panel vs. single arbitrator comparison

See arbitration panel vs. single arbitrator for extended analysis of this structural choice.

The selection phase ends with formal appointment. Post-appointment, any newly discovered grounds for disqualification must be raised promptly; delayed objections risk waiver under both federal and state procedural standards. Costs associated with arbitrator compensation are addressed under arbitration costs and fees.

References

• Federal Arbitration Act, 9 U.S.C. §§ 1–16 — statutory authority for arbitrator disqualification and award vacatur.
• AAA Commercial Arbitration Rules (including Rules R-12 through R-16) — governing list-and-strike procedures and panel threshold determinations.
• JAMS Comprehensive Arbitration Rules & Procedures, Rules 12–15 — institutional selection and appointment procedures.
• FINRA Rule 12401 – Number of Arbitrators — tripartite panel composition for securities disputes.
• Federal Mediation and Conciliation Service, 29 C.F.R. Part 1404 — FMCS arbitrator roster standards for labor disputes.
• [Revised Uniform Arbitration Act (RUAA), Uniform Law Commission](https://www.uniformlaws.org/committees/