Chapter 11 - § 11.2 • QUALIFICATIONS AND APPOINTMENT OF THE ARBITRATOR

• Jurisdiction: Colorado

§ 11.2 • QUALIFICATIONS AND APPOINTMENT OF THE ARBITRATOR

§ 11.2.1—Qualifications

There are no provisions in the Colorado Revised Uniform Arbitration Act (CRUAA) or Federal Arbitration Act (FAA) defining any qualifications for a person to serve as an arbitrator. Similarly, there are no qualifications in the American Arbitration Association (AAA) rules, although arbitrators who are selected from the AAA Roster of Arbitrators, and most other arbitration service organizations, have undergone certain screening. See § 11.4, "Disclosures," and § 11.6, "Disqualification of Arbitrator."

However, the arbitration agreement can define the qualifications of the arbitrator. Such requirements may include a minimum age, type of education, licenses, experience, and so forth. Sometimes, particularly if the agreement to arbitrate was entered into after the dispute arose, the arbitration agreement will name a specific person to serve as the arbitrator. If the agreement to arbitrate relates to future disputes, it is much less common to see the arbitrator named, but it is done from time to time. Qualifications of and procedures for selection of the arbitrator are the most important provisions of an agreement to arbitrate.

None of the arbitration statutes mentions any requirement that the arbitrator be a lawyer or licensed to practice law. Historically, perhaps most arbitrators were not lawyers, although today most arbitrators are. The silence of the statute might be construed to mean no license is required or that the issue is left to another body, e.g., the supreme court. The Philadelphia Bar Association Professional Guidance Committee held that a suspended lawyer awaiting reinstatement could act as a mediator or arbitrator, provided he or she does not give legal advice and clearly identifies himself or herself as not currently admitted to practice law.¹ See also Chapter 10, "Representation of Parties by Attorneys and Non-Attorneys."

Under the AAA Rules, the parties' agreed designation or method of appointing an arbitrator governs. However, in the absence of such agreement, the AAA submits to each party the identical list of proposed arbitrators from its Roster of Arbitrators. Each party can strike those arbitrators the party objects to and then number the remaining names in order of preference. The AAA then appoints the "most favored" person. Default provisions are also provided.²

§ 11.2.2—Agreement As To Manner Of Selection/Appointment

Arbitrators are appointed/selected in accordance with the agreement to arbitrate, including the rules the parties incorporate and any subsequent agreement of the parties.³ A common method of appointment is for each party to appoint one arbitrator, and the two arbitrators together then appoint the third arbitrator. On the other hand, many arbitrations cannot justify the cost of three arbitrators. Another procedure is provided by adopting the AAA Rules and following the procedures for selection set...