9. Arbitrator
9.1 An attorney should act as an arbitrator only if competent to do so.
Comment
No lawyer should act as the arbitrator of marital disputes without adequate education and training.[106] There are many ways to acquire the necessary knowledge of arbitration and skill as an arbitrator, including law school training programs, AAML arbitration training workshops, continuing legal education, formal training programs, and experience as an arbitrator in other areas of the law. A matrimonial lawyer is likely to be a better arbitrator of matrimonial disputes than nonlawyers or lawyers who practice in different fields because of the matrimonial lawyer’s understanding of the nuances of family law and experience with the likely outcome of matrimonial litigation.
9.2 An attorney acting as an arbitrator should comply with all relevant rules applicable to judges, including the Code of Judicial Conduct.
Comment
Because arbitrators act in a quasi-judicial role, they have been afforded immunity protection akin to that of judges. Judicial immunity protects judges to the extent that they “…are not liable to civil actions for the[ir] judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”[107] In fact, the Court in Stump v. Sparkman went on to hold: “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction’.”[108]
Arbitral immunity has its base in judicial immunity. The extension of judicial immunity to arbitrators began in the 1880’s, and remains firmly a part of our jurisprudence. In 1884, the principle of arbitral immunity was eloquently articulated: “an arbitrator is a quasijudicial officer under our laws, exercising judicial functions. There is as much reason in his case for protecting and insuring his impartiality, independence and freedom from undue influence, as in the case of a judge or juror.”[109]
Whereas mediators are treated more like attorneys for conflict of interest analysis, arbitrators are treated more like judges.[110] This distinction is important because judges are generally held to a higher ethical standard than attorneys. For example, the former CPR admonition to avoid even the appearance of impropriety (Canon 9) has been deleted from the RPC.[111] Under Canon 2 of the CJC, however, a judge “should avoid impropriety and the appearance of impropriety in all of the judge’s activities.”[112]
Therefore, an attorney requested to serve as an arbitrator in a matrimonial proceeding may wish to consider some actions not necessarily routinely done in the role of an advocate. For example, disclosure of any prior relationship, social or professional, with any of the parties, attorneys or witnesses will increase the confidence of the participants in the objectivity of the arbitrator.[113] Any conflict of interest that exists at the inception of the arbitration, or that comes into existence during the proceedings should also be disclosed. In addition, unless all parties consent after disclosure, a former arbitrator may not subsequently represent anyone in connection with the matter in which he or she “participated personally and substantially.”[114] Care should be taken to decide only those matters included in the arbitration agreement or other document referring the matter to arbitration. Like judges, arbitrators should be cautions about participating in settlement discussions because the appearance of objectivity may be lost even if the arbitrator in fact remains uninfluenced by the positions taken by the parties in settlement discussions.