The CCA-Straus Institute Survey on Arbitration Practice, one of the Straus Institute’s three recent surveys under the Theory-to-Practice Research Project, consisted of 65 multiple-choice and short-answer questions on respondents’ arbitration experiences and opinions on arbitration practices and the future of the arbitration field-at-large. The Survey asked questions pertaining to both “domestic” (defined in the Survey as “in the U.S. between U.S. parties”) and “international” (all other) arbitrations. The Survey was sent electronically to 212 individuals, all CCA Fellows, of whom 134 individuals (about 63 percent) completed the survey instrument. (The Survey and associated data are available from Professor Stipanowich.)

Here is some initial information regarding the respondents of the Survey:

Age and Gender

• The average age of respondents indicating their age (110 individuals) was around 65.
• 85% of survey participants indicating their gender (123 individuals) were male.

Legal backgrounds

• Among respondents, 81.9% reported having “litigation” backgrounds, 28.4% of the respondents reported having “transactional-attorney” backgrounds, and 9.5% of the respondents reported having” judicial” backgrounds (these categories were not mutually exclusive).
• The participant pool had a mean arbitration-career length of more than 20 years (calculated as a weighted average of responses to a multiple-choice question asking respondents to choose among several ranges indicating the length of time that has passed since they first arbitrated a case, and using the lowest-possible value for each range) and 78.7% of respondents reported having practiced as arbitrators for at least 20 years.
• Further, respondents indicated a mean of at least 170 arbitrations each (calculated using the same weighted-average methodology as described above), and over two-thirds of participants (67.7%) reported having served as an arbitrator over 100 times throughout their career.

Professionalization of arbitration practice

• Nearly two-thirds (65.8%) of participants indicated they spend half or more of their work time as arbitrators.
• Almost twenty percent (19.8%) of respondents indicated that “over 90%” of their work time is spent as an arbitrator.
• About three-fourths (74.0%) of respondents indicated that they still worked “full time,” and of those who did not work full time over ninety percent (90.9%) worked “at least occasionally.”

International practice

• The great majority (84.4%) of respondents indicated they had previously arbitrated an international dispute.
• Of those who had done so, almost half (47.7%) had averaged at least one international case per year for the last five years, and almost one-third (32.7%) averaged at least two international cases per year.

Forthcoming analyses

In the coming months, we will be offering in-depth analysis of a range of topics covered by the survey, including:

• Incidence of settlement of arbitrated cases
• Arbitrator attitudes toward and roles in settlement
• Arbitrators’ experience as sole arbitrator in cases of various sizes;
• Experience with streamlined or fast-track procedures; with “baseball” or “final offer” arbitration, or bracketed awards; with procedures for interim/emergency relief; with appellate arbitration rules
• Experience as non-binding arbitrator or “early neutral evaluator”
• Administered vs. non-administered arbitration rules, and ad hoc arbitration
• Experiences with and perceptions of party-appointed arbitrators on tripartite panels
• Tailoring of arbitration procedures
• Non-lawyers as arbitrators
• Handling of motions for summary disposition
• Management of discovery in arbitration
• Management of arbitration hearings
• Standards for arbitrator decision making; handling of legal issues
• Experiences with med-arb or mixed roles
• Experience with arbitration provider organizations
• Trends currently affecting practice and the field-at-large

The first fruit of these studies is the just-completed article Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, which leads off the new Penn State Yearbook on Arbitration and Mediation. The role of arbitrators in setting the stage for settlement has received relatively little attention despite the fact that, as our survey shows, the rate of pre-award and pre-hearing settlement is increasing. Moreover, different arbitrators are experiencing very different rates of settlement and have different attitudes toward their roles in settlement. However, the survey shows that many arbitrators are engaged in activities that have an impact on settlement.

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