The choice of an arbitrator is a different decision from the choice of a mediator, and the counsel who select arbitrators the way they select mediators produce outcomes that reflect the confusion. A mediator facilitates a negotiation. The parties decide whether to settle and on what terms. If the mediator gets it wrong, the case moves forward and the parties are no worse off than they were the day before. An arbitrator decides the case. The award is final and generally unappealable. If the arbitrator gets it wrong, the parties live with the wrong answer, and there is no meaningful mechanism for correcting it.
That single structural difference should reshape how counsel approach arbitrator selection. It usually does not. Counsel treat the two decisions as variations on the same problem, and the arbitrator selection process ends up looking like the mediator selection process with slightly different names in the pool. This is a mistake, and it is a mistake that costs clients money.
I have practiced commercial litigation in Florida for thirty-seven years and now sit as a neutral in mediation and arbitration. What follows is what counsel should actually look for when selecting an arbitrator, why the ordinary selection process misses most of what matters, and how the choice interacts with the arbitration clause and the case at hand.
The finality problem changes everything.
Arbitration awards are subject to vacatur only on narrow statutory grounds. The Federal Arbitration Act permits vacatur where the award was procured by fraud or corruption, where the arbitrator engaged in misconduct, or where the arbitrator exceeded the scope of the authority granted by the arbitration agreement. Florida's Revised Arbitration Code tracks the federal grounds closely. What does not appear on either list is a claim that the arbitrator got the facts wrong or misapplied the law. Substantive error is not a ground for vacatur, and the courts that review arbitration awards routinely say so.
The practical implication is that the arbitrator's judgment on the merits is functionally the last word on the case. There is no appellate court that will correct the wrong answer. There is no motion for rehearing that will meaningfully change the outcome. The parties get what the arbitrator delivers, and they get it whether it is right or wrong.
Counsel who understand this select arbitrators the way trial counsel select jury venires: with the recognition that the person deciding the case is the case. Counsel who do not understand this, or who understand it in the abstract but forget it in the moment of selection, treat the choice as a scheduling exercise or a networking exercise, and their clients pay for the confusion in awards that could have been avoided.
Subject-matter fit is not optional.
The first thing counsel should look for in an arbitrator is genuine subject-matter fit with the dispute at hand. This is not the same as general commercial experience, and the difference matters more than counsel commonly appreciate.
A commercial dispute involving construction defect law needs an arbitrator who has litigated or arbitrated construction defect cases. A commercial dispute involving insurance coverage needs an arbitrator who has worked on coverage matters at a level of detail that goes beyond having read the policy. A commercial dispute involving a partnership dissolution needs an arbitrator who has been through partnership disputes as counsel and has seen how they resolve. A commercial dispute involving a specialized industry, whether that is technology licensing, real estate development, healthcare services, or something else, needs an arbitrator who knows the industry's ordinary practices well enough to distinguish the disputed conduct from the routine.
The reason the fit matters is that an arbitrator without subject-matter familiarity has to be educated during the hearing, which consumes hearing time that the parties are paying for, which produces an award informed by whatever the arbitrator could absorb in three days rather than by the accumulated understanding that a subject-matter arbitrator brings. Counsel who select generalist arbitrators for specialized disputes save time on the selection process and pay for it many times over in the hearing.
Trial experience is what makes the arbitrator competent, not what makes them redundant.
There is a persistent assumption that because arbitration is designed as an alternative to trial, the arbitrator does not need trial experience. This is backwards. The arbitrator's job is to conduct a proceeding that produces a defensible decision on disputed evidence, which is precisely what trial judges do and precisely what trial lawyers spend their careers preparing for. An arbitrator without trial experience is often unable to run the proceeding, evaluate the evidence, or write an award that holds up to scrutiny.
The specific things trial experience produces in an arbitrator include: comfort with evidentiary rulings under pressure, the ability to distinguish credible testimony from performance, familiarity with how expert witnesses are actually cross-examined and where their opinions actually break down, understanding of the strategic incentives that shape counsel's presentations, and the professional habit of writing findings of fact that can be defended against later attack. Retired trial judges have all of these. Active commercial litigators have most of them. Arbitrators whose background is in transactional practice, or in mediation without significant trial work, generally have fewer of them, and the deficit is visible during the arbitration.
Counsel selecting arbitrators are entitled to ask directly about the arbitrator's trial history. How many commercial cases has the arbitrator tried in the last decade? What kinds of cases? What proportion of the arbitrator's professional work is trial and arbitration compared to transactional practice or mediation? The answers are informative, and counsel who make selections without asking are selecting on incomplete information.
The temperament question is real and rarely discussed.
Arbitrators differ from each other in temperament in ways that shape outcomes. Some arbitrators are collaborative and encourage settlement discussion during the pendency of the arbitration. Others are strictly adjudicative and treat the proceeding as a trial before a private judge. Some arbitrators are procedurally strict and enforce the schedule and the discovery limits without accommodation. Others are more flexible and allow the proceeding to evolve as the case develops. Some arbitrators are active questioners during testimony and cross-examine witnesses themselves. Others are passive and let counsel run the presentation.
None of these temperaments is inherently correct, but the fit between the temperament and the case at hand matters. A complex case with substantial documentary discovery benefits from an arbitrator who is willing to extend the schedule when the discovery process reveals more than expected. A case where the parties have significant continuing business relationships benefits from an arbitrator who is willing to conduct settlement discussions during the pendency of the arbitration if the parties want that. A case where one side has significantly more resources than the other benefits from an arbitrator who enforces the schedule and the discovery limits strictly, because the flexible arbitrator will produce a proceeding that advantages the better-resourced party.
Counsel should ask about temperament directly, or should talk to counsel who have arbitrated in front of the candidate to learn the answer. The information is available, and the counsel who gather it before making the selection are ahead of the counsel who select on reputation without inquiring into the details of what that reputation actually means in the room.
Panel composition matters as much as the individual choice.
Many commercial arbitration clauses call for panels of three arbitrators rather than a single arbitrator. The party-appointed model is the most common variant, in which each side appoints one arbitrator and those two select the third. The panel composition question is often treated as a mechanical process that follows the clause. It is not.
Party-appointed arbitrators are neutrals under most institutional rules and under the applicable ethical codes, and the selection each side makes reflects that framework. Counsel typically look for a party-appointed arbitrator whose professional background, subject-matter familiarity, and analytical style fit the character of the dispute. The chair of the panel, selected by the two party-appointed arbitrators, is the arbitrator whose judgment on close questions frequently proves decisive, because the chair is the arbitrator both sides can accept and often supplies the deciding vote when the panel divides.
Counsel selecting a party-appointed arbitrator should think carefully about who that arbitrator will be able to work with in choosing the chair. The arbitrator counsel prefer as chair may be someone the other side's party-appointed arbitrator is unlikely to accept. The arbitrator both party-appointed arbitrators can converge on is a different person, and identifying that person in advance is the actual strategic work of the panel composition process.
The three-arbitrator format itself is worth reconsidering in some cases. Panels of three cost roughly three times as much as a single arbitrator in fees alone, and the deliberation benefit that panels are supposed to produce is not always visible in the awards. Counsel drafting arbitration clauses should think carefully about whether the size of dispute the clause anticipates justifies the panel cost. Single-arbitrator arbitration is faster, cheaper, and often produces awards that are just as defensible as panel awards, provided the single arbitrator is well selected.
Institutional versus ad hoc, and why the choice interacts with the selection.
Commercial arbitration clauses generally specify an institutional provider whose rules govern the proceeding and whose staff administers the case. The institutional model has real advantages: the rules are known, the roster of arbitrators has been vetted, the case administration is professional, and the parties do not need to negotiate procedural questions themselves. It has real disadvantages too: the administration fees can be substantial before the arbitrator's fees are even considered, the roster of arbitrators is drawn from the institution's panels, and the case administration follows the institution's practices rather than the parties' preferences.
Ad hoc arbitration, in which the parties select an arbitrator directly without institutional administration, is a legitimate alternative for many commercial disputes. It avoids the administration fees. It gives the parties direct access to the arbitrator without institutional intermediaries. It permits selection from a broader pool of neutrals than any single institution's roster. It requires the parties to negotiate the procedural rules themselves, which most counsel treat as a downside but which experienced counsel sometimes treat as an upside because the negotiated rules can fit the case better than the institutional defaults.
The choice between institutional and ad hoc arbitration interacts with the arbitrator selection in ways counsel should think about. Institutional arbitration produces selections from the institution's roster, which is limited but curated. Ad hoc arbitration produces selections from the entire market of neutrals, which is larger but requires more due diligence. Neither choice is inherently correct. Both should be made deliberately.
The reasoned award question.
Arbitration awards can be delivered as bare awards, which state the outcome without explanation, or as reasoned awards, which set forth findings of fact and conclusions of law in the manner of a trial court order. The choice between the two is made in the arbitration clause or by agreement of the parties during the proceeding, and the choice matters more than parties commonly realize.
The bare award is faster to produce and cheaper for the parties. It provides no basis for appellate review, which is generally not available in arbitration anyway. It gives the parties the outcome without the reasoning, which is what some parties prefer when they want the dispute closed rather than analyzed.
The reasoned award is more expensive because it requires the arbitrator to write a detailed explanation of the decision. It provides a record that the parties and any successor counsel can understand and evaluate. It supports the limited grounds for vacatur under the Federal Arbitration Act and the Florida Revised Arbitration Code, because a reasoned award makes it clearer when the arbitrator has exceeded the scope of authority granted by the clause. It gives the losing party a coherent explanation of why they lost, which sometimes matters for reasons independent of the case itself.
Counsel selecting arbitrators should ask candidates whether they write reasoned awards routinely and what their reasoned awards typically look like. Some arbitrators produce reasoned awards that read like appellate opinions, with careful analysis of the record and the applicable law. Others produce reasoned awards that read like conclusions with light supporting narrative. The difference is worth understanding before the arbitrator is selected, because it is a difference the parties will experience only after the hearing has concluded and the award is issued.
What the selection process actually looks like when it works.
The counsel who select arbitrators effectively do a few things in common. They start the process early, often before the arbitration is filed and sometimes before the underlying contract is even signed, so that the selection is a considered choice rather than a rushed one. They identify subject-matter experts in the specific area of the dispute rather than defaulting to generalist commercial arbitrators. They investigate the temperament and procedural style of the candidates through conversations with counsel who have appeared before them. They understand the institutional versus ad hoc question and make it deliberately. They think carefully about panel composition and the strategic role of the chair. They ask candidates about reasoned awards, trial experience, and current litigation practice, and they weigh the answers.
The counsel who select arbitrators poorly generally rely on the institutional roster without deep investigation, choose whichever candidate is available on the desired hearing dates, treat the party-appointed arbitrator as a proxy for one side's counsel rather than as a neutral selection, and skip the temperament and reasoned-award questions because those questions require asking things the counsel does not want to know until it is too late.
Closing observations.
The arbitrator is the case, in a way that the mediator is not. The selection deserves the time, the analysis, and the care that a final adjudication warrants. Counsel who invest in the selection process, ask the hard questions, and choose deliberately are doing better work for their clients than counsel who treat the choice as a logistical hurdle. The clients whose cases are decided by carefully chosen arbitrators end up in a better position than the clients whose cases are decided by whichever candidate happened to be available.
The arbitration practice at Rosenthal Resolutions accepts engagements as sole arbitrator, as party-appointed arbitrator, and as chair of three-arbitrator panels, in commercial matters governed by the Federal Arbitration Act, the Florida Revised Arbitration Code, and the principal institutional rules that Florida commercial parties typically select. Counsel considering an arbitrator for a pending matter or a name for insertion into an arbitration clause under negotiation are welcome to raise the subject at any time.