Arbitration Umpire Selection: What Makes Sense

March 26, 2025 | Barry Ostrager

Arbitration is intended to be an expeditious, cost-effective, and streamlined way of resolving disputes. Parties can avoid the delays and expenses that come with resolving a dispute in a courtroom. Court dockets contain hundreds of cases with a single trial judge, who is contending on a daily basis with multiple motions, hearings, orders to show cause, and trials, all of which renders it nearly impossible to achieve resolution of a dispute in court in less than two years. And don’t forget about the expenses associated with discovery rules and necessary court filings.

How did we get here?

Cases can languish in court for more than two years. Indeed, in the New York State Supreme Court interlocutory appeals on discovery orders and motions to dismiss can easily protract the life of a civil dispute up to even five years. In addition, appeals from any trial court judgment can further extend the ultimate resolution of a civil case.

By contrast, absent protracted disputes about umpire selection in arbitrations, disputes can be resolved in far less time than they can be resolved in court and far less expensively. And, while arbitration awards can be challenged in Court, absent extraordinary circumstances, arbitration awards are routinely confirmed by the courts.

What do you need to know about arbitrator selection?

Parties have the ability to tailor arbitration provisions to fit the subject matter of the contractual relationship between contracting parties. They can also thoughtfully circumscribe the parameters of the arbitration process. For example, the parties could agree in advance that any arbitration would be conducted by a sole arbitrator of their choosing—typically a respected expert in the field of the contract or a retired jurist that the parties respect. Or the parties can specify that the arbitrators must have an agreed upon amount of experience in a discipline related to the subject matter of the contract or consist entirely of conflict-free retired judges.

Any arbitration platform will, of course, attempt to propose qualified arbitrators with appropriate backgrounds to resolve a dispute. The parties are each free to select a party arbitrator from a list of qualified arbitrators provided by the arbitration panel or to choose an arbitrator who will be governed by the rules of the arbitration platform.

How do parties select an umpire?

Presumably, for a three-arbitrator panel the parties can be confident that any party arbitrator that a party selects will advance the arguments that support the position of the party who chooses a party arbitrator. But for an arbitration to truly work as intended, the parties must have confidence that the umpire, who may be the deciding vote in the outcome of the arbitration, is truly neutral and will chair the arbitration with a view toward rendering a merits-based outcome. Umpire selection can be among the most time-consuming parts of the arbitration process. So, if each side proposes a list of a half a dozen umpires and each side strikes five of the other sides’ choices, the parties can be left with two choices, neither of which is entirely satisfactory to both parties. When this occurs, the umpire is sometimes chosen by a coin flip. This approach can undermine the confidence a party has in the arbitration. If the parties do not agree on a coin flip (and there are arbitration platforms that insist on a coin flip), most arbitration platforms will select the umpire. But leaving the umpire decision to an arbitration platform may also disappoint one of the parties.

The thesis of this article is that neither a coin flip nor the selection of the umpire by an arbitration platform is an entirely satisfactory way to choose an umpire. So, the optimum solution is for the parties to take whatever time is necessary to come to a mutual agreement on an umpire. This ensures that the parties have selected an arbitration panel that is mutually satisfactory to both parties.

If the parties front-load the drafting of an arbitration clause with a mutually-agreed upon mechanism for selecting the arbitration panel, including the umpire, each party will achieve the benefits of arbitration and the benefit of their bargain.

Arbitrations have proliferated because the various arbitration platforms met the challenge of formulating rules and procedures that expedite the resolution of disputes while reducing the transactional costs associated with achieving a reasoned disposition of commercial disputes.

Hon. Barry R. Ostrager (Ret.) served as a New York State Supreme Court Justice in the Commercial Division for nearly 10 years. He is currently a FedArb panelist. Explore Judge Ostrager’s bio.