Arbitration

Arbitrator Selection: How About a Compatible Personality?

Peter L. Michaelson is an attorney specializing in intellectual property, and an arbitrator and mediator of very substantial experience.  He also enjoys cruises to Alaska, which may characterize his “beyond-the-boundaries” attitude when it comes to adding value to clients of ADR processes. 

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(Pete Michaelson’s photo of an Alaskan buffalo, sauntering in Kodiak.)

He has recently published an article that brings out a little-remarked but potentially costly issue:  How to ensure compatibility among party-appointed arbitrators and encourage an efficient and professional arbitral panel.

Pete chose a snappy title for his piece, published by the Chartered Institute of Arbitrators:  Enhancing Arbitrator Selection: Using Personality Screening to Supplement Conventional Selection Criteria for Tripartiute Arbitration Tribunals.  And like any good title, it says it all!

Noting and regretting the “personality clashes” that can sometimes impede the work of a panel, Michaelson reviews the selection provisions of the main provider organizations and notes that none of them include compatibility as a criterion.  He writes that some commentators have recognized the problem: the “Ego-Tripper” who expounds on his own expertise; the “White Knight” who uses the proceeding to advance the cause of industrial justice; the “Whimp” who is unwilling or unable to exercise control; the “Unemployed Timeserver” who is disinclined to compel efficiency of the proceeding, having nothing more profitable to do with himself.  But none has suggested a solution.

Michaelson then reminds us that there are several personality measuring instruments out there that can be used online, are dead cheap, and can lend real insight into a prospective arbitrator’s ability to “play well with others.”  Two that I’m familiar with are the Myers-Briggs Type Indicator (MBTI) and the Thomas-Kilman Conflict Mode Instrument (TKI).  These indicate the subject’s proclivity ot collaborate, compete, avoid, compromise or accommodate in the face of conflict.  Michaelson also notes and describes the DiSC Classic test and the Keirsey Temperament Sorter, with which I’m not familiar.  Apparently, each of these has a built-in “lie scale” that can detect inconsistencies in responses that might reflect efforts at deliberate manipulation.

Michaelson’s overall view is pretty compelling: The information gleaned from a personality screen may or may not be useful in a given case.  But when the arbitration process is so expensive, and when so many hundreds of millions are at stake, why would one wish to save the $200 it may cost to administer such a personality inventory, and remain ignorant of a critical aspect of the eventual process — whether the tribunal will work together in a principled, diligent and cooperative manner?

(And who will administer the MBTI to the buffalo, by the way?)

1 Comment
  1. Attorney Michaelson has assigned creative names to the perennials on certain arbitration panels. The inability of some neutrals to work and play well with one another will continue to amaze.

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