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Ethics Standards for Neutral Arbitrators in Contractual Arbitration

Adopted by Judicial Council of California 04/19/2002

Division VI of the appendix to the California Rules of Court is adopted, effective July 1, 2002, and standard 7(b)(12) is adopted, effective January 1, 2003, to read:

Division VI of the Appendix to the California Rules of Court

Standard 1. Purpose, intent, and construction
Standard 2. Definitions
Standard 3. Application and effective date
Standard 4. Duration of duty
Standard 5. General duty
Standard 6. Duty to refuse appointment
Standard 7. Disclosure
Standard 8. Disqualification
Standard 9. Duty to refuse gift, bequest, or favor
Standard 10. Duties and limitations regarding future professional relationships or employment
Standard 11. Conduct of proceeding
Standard 12. Ex parte communications
Standard 13. Confidentiality
Standard 14. Compensation
Standard 15. Marketing

Standard 1. Purpose, intent, and construction

(a) These standards are adopted under the authority of Code of Civil Procedure section 1281.85 and establish the minimum standards of conduct for neutral arbitrators.  They are intended to guide the conduct of arbitrators, to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.

(b) For arbitration to be effective there must be broad public confidence in the integrity and fairness of the process. Arbitrators are responsible to the parties, the other participants, and the public for conducting themselves in accordance with these standards so as to merit that confidence.

(c) These standards are to be construed and applied to further the purpose and intent expressed in subdivisions (a) and (b) and in conformance with all applicable law.

Comment to Standard 1

Code of Civil Procedure section 1281.85 provides that, beginning July 1, 2002, a person serving as a neutral arbitrator pursuant to an arbitration agreement shall comply with the ethics standards for arbitrators adopted by the Judicial Council pursuant to that section.

While the grounds for vacating an arbitration award are established by statute, not these standards, an arbitrator’s violation of these standards may, under some circumstances, fall within one of those statutory grounds. (See Code Civ. Proc., § 1286.2.)   A failure to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware is a ground for vacatur of the arbitrator’s award. (See Code Civ. Proc., §1286.2(a)(6)(A).) Violations of other obligations under these standards may also constitute grounds for vacating an arbitration award under section 1286.2(a)(3) if “the rights of the party were substantially prejudiced” by the violation.

These standards are not intended to establish a ceiling on what is considered good practice in arbitration or to discourage efforts to educate arbitrators about best practices.

Standard 2. Definitions

As used in these standards:

(a) [Arbitrator and neutral arbitrator]

(1) “Arbitrator” and “neutral arbitrator” mean any arbitrator who is to serve impartially, whether selected or appointed:

(A) Jointly by the parties or by the arbitrators selected by the parties;

(B) By the court, when the parties or the arbitrators selected by the parties fail to select an arbitrator who was to be selected jointly by them;

(C) By a dispute resolution provider organization, under an agreement of the parties; or

(D) By any party acting alone, if all parties agree in writing that the unilaterally appointed arbitrator is to serve impartially.

(2) Where the context includes events or acts occurring before an appointment is final, “arbitrator” and “neutral arbitrator” include a person who has been served with notice of a proposed nomination or appointment.

(b) “Applicable law” means constitutional provisions, statutes, decisional law, California Rules of Court, and other statewide rules or regulations that apply to arbitrators who are subject to these standards.

(c) “Conclusion of the arbitration” means the following:

(1) When the arbitrator is disqualified or withdraws before making an award, the date on which the arbitrator’s appointment is terminated;

(2) When the arbitrator makes an award and no party makes a timely application to the arbitrator to correct the award, the final date for making an application to the arbitrator for correction; or

(3) When a party makes a timely application to the arbitrator to correct the award, the date on which the arbitrator serves a corrected award or a denial on each party, or the date on which denial occurs by operation of law.

(d) “Consumer arbitration” means an arbitration conducted under a predispute arbitration provision contained in a contract that meets the criteria listed in paragraphs (1) through (3) below.  “Consumer arbitration” excludes arbitration proceedings conducted under or arising

out of public or private sector labor-relations laws, regulations, charter provisions, ordinances, statutes, or agreements.

(1) The contract is with a consumer party, as defined in these standards;

(2) The contract was drafted by or on behalf of the nonconsumer party; and

(3) The consumer party was required to accept the arbitration provision in the contract.

(e) “Consumer party” is a party to an arbitration agreement who, in the context of that arbitration agreement, is any of the following:

(1) An individual who seeks or acquires, including by lease, any goods or services primarily for personal, family, or household purposes including, but not limited to, financial services, insurance, and other goods and services as defined in section 1761 of the Civil Code;

(2) An individual who is an enrollee, a subscriber, or insured in a health-care service plan within the meaning of section 1345 of the Health and Safety Code or health-care insurance plan within the meaning of section 106 of the Insurance Code;

(3) An individual with a medical malpractice claim that is subject to the arbitration agreement; or

(4) An employee or an applicant for employment in a dispute arising out of or relating to the employee’s employment or the applicant’s prospective employment that is subject to the arbitration agreement.

(f) “Dispute resolution neutral” means a temporary judge appointed under article VI, section 21 of the California Constitution, a referee appointed under Code of Civil Procedure section 638 or 639, an arbitrator, a neutral evaluator, a special master, a mediator, a settlement officer, or a settlement facilitator.

(g) “Dispute resolution provider organization” and “provider organization” mean any entity that, or individual who, coordinates, administers, or provides the services of two or more dispute resolution neutrals.  “Provider organization” does not include a court.

(h)  “Financial interest” means a financial interest within the meaning of Code of Civil Procedure section 170.5.

(i) “Gift” means a gift as defined in Code of Civil Procedure section 170.9(l).

(j) “Honoraria” means honoraria as defined in Code of Civil Procedure section 170.9(h) and (i).

(k) “Lawyer in the arbitration” includes any lawyer present at the arbitration hearing or who is identified in any arbitration brief or other papers submitted to the arbitrator as representing a party for purposes of the arbitration.

(l) “Lawyer for a party” includes any lawyer representing a party and any lawyer currently associated in the practice of law with a lawyer hired to represent a party.

(m) “Member of the arbitrator’s immediate family” includes the arbitrator’s spouse or domestic partner (as defined in Family Code section 297) and a minor child living in the arbitrator’s household.

(n) “Member of the arbitrator’s extended family” includes the members of the arbitrator’s immediate family and the parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, siblings, uncles, aunts, nephews, or nieces of the arbitrator or the arbitrator’s spouse or domestic partner (as defined in Family Code section 297) or the spouse of such person.

(o) [Party]

(1) “Party” means a party to the arbitration agreement:

(A) Who seeks to arbitrate a controversy pursuant to the agreement;

(B) Against whom such arbitration is sought; or

(C) Who is made a party to such arbitration by order of a court or the arbitrator upon such party’s application, upon the application of any other party to the arbitration, or upon the arbitrator’s own determination.

(2) “Party” includes the representative of a party, unless the context requires a different meaning.

(p) “Party-arbitrator” means an arbitrator selected unilaterally by a party and who is not expected to serve in an impartial manner.

(q) “Significant personal relationship” includes a close personal friendship.

Comment to Standard 2

Subdivision (a). The definition of “arbitrator” and “neutral arbitrator” in this standard is intended to include all arbitrators who are to serve in a neutral and impartial manner and to exclude unilaterally selected arbitrators who are to serve as advocates or in a partisan role.

Other terms that may be pertinent to these standards are defined in Code of Civil Procedure section 1280.

Standard 3. Application and effective date

(a) Except as provided in this standard and subdivision (b)(12) of standard 7, these standards apply to all persons who are appointed to serve as neutral arbitrators on or after July 1, 2002, in any arbitration under an arbitration agreement, if:

(1) The arbitration agreement is subject to the provisions of title 9 of part III of the Code of Civil Procedure (commencing with section 1280); or

(2) The arbitration hearing is to be conducted in California.

(b) These standards do not apply to:

(1) Party arbitrators, as defined in these standards; or

(2) Any arbitrator acting in:

(A) An international arbitration proceeding subject to the provisions of title 9.3 of part III of the Code of Civil Procedure;

(B) A judicial arbitration proceeding subject to the provisions of chapter 2.5 of title 3 of part III of the Code of Civil Procedure;

(C) An attorney-client fee arbitration proceeding subject to the provisions of article 13 of chapter 4 of division 3 of the Business and Professions Code;

(D) An automobile warranty dispute resolution process certified under California Code of Regulations title 16, division 33.1;

(E) An arbitration of a workers’ compensation dispute under Labor Code sections 5270 through 5277;

(F) An arbitration conducted by the Workers’ Compensation Appeals Board under Labor Code section 5308;

(G) An arbitration of a complaint filed against a contractor with the Contractors State License Board under Business and Professions Code sections 7085 through 7085.7; or

(H) An arbitration conducted under or arising out of public or private sector labor-relations laws, regulations, charter provisions, ordinances, statutes, or agreements.

(c) Persons who are serving in arbitrations in which they were appointed to serve as arbitrators before July 1, 2002, are not subject to these standards in those arbitrations.  Persons who are serving in arbitrations in which they were appointed to serve as arbitrators before January 1, 2003, are not subject to subdivision (b)(12) of standard 7 in those arbitrations.

Comment to Standard 3

With the exception of subdivision (b)(12) of standard 7, these standards apply to all arbitrators appointed on or after July 1, 2002, who meet the criteria of subdivision (a) and who are to serve impartially, even arbitrators appointed unilaterally by one party.  Arbitration provider organizations, although not themselves subject to these standards, should be aware of them when performing administrative functions that involve arbitrators who are subject to these standards. A provider organization’s policies and actions should facilitate, not impede, compliance with the standards by arbitrators who are affiliated with the provider organization.

Standard 4. Duration of duty

(a) Except as otherwise provided in these standards, an arbitrator must comply with these ethics standards from acceptance of appointment until the conclusion of the arbitration.

(b) If, after the conclusion of the arbitration, a case is referred back to the arbitrator for reconsideration or rehearing, the arbitrator must comply with these ethics standards from the date the case is referred back to the arbitrator until the arbitration is again concluded.

 Standard 5. General duty

An arbitrator must act in a manner that upholds the integrity and fairness of the arbitration process.  He or she must maintain impartiality toward all participants in the arbitration at all times.

Comment to Standard 5

This standard establishes the overarching ethical duty of arbitrators. The remaining standards should be construed as establishing specific requirements that implement this overarching duty in particular situations.

Maintaining impartiality toward all participants during all stages of the arbitration is central to upholding the integrity and fairness of the arbitration.  An arbitrator must perform his or her duties impartially, without bias or prejudice, and must not, in performing these duties, by words or conduct manifest partiality, bias, or prejudice, including but not limited to partiality, bias, or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or the fact that a party might select the arbitrator to serve as an arbitrator in additional cases.  After accepting appointment, an arbitrator should avoid entering into any relationship or acquiring any interest that might reasonably create the appearance of partiality, bias, or prejudice.  An arbitrator does not become partial, biased, or prejudiced simply by having acquired knowledge of the parties, the issues or arguments, or the applicable law.

Standard 6. Duty to refuse appointment

Notwithstanding any contrary request, consent, or waiver by the parties, a proposed arbitrator must decline appointment if he or she is not able to be impartial.

Standard 7. Disclosure

(a) Intent.  This standard is intended to identify the matters that must be disclosed by a person nominated or appointed as an arbitrator. To the extent that this standard addresses matters that are also addressed by statute, it is intended to include those statutory disclosure requirements, not to eliminate, reduce, or otherwise limit them.

(b) [Required disclosures]  A person who is nominated or appointed as an arbitrator must make a reasonable effort to inform himself or herself of any matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial and must disclose all such matters to the parties. Matters that must be disclosed include:

(1) [Family relationships with party] The arbitrator or a member of the arbitrator’s extended family is a party, a party’s spouse or domestic partner, or an officer, director, or trustee of a party.

(2) [Family relationships with lawyer in the arbitration] The arbitrator, a member of the arbitrator’s extended family, or the arbitrator’s former spouse is:

(A) A lawyer in the arbitration.  For purposes of this paragraph only, “lawyer in the arbitration” includes a person who has served as a lawyer for or as an officer of a public agency and who personally advised or in any way represented the public agency concerning the factual or legal issues in the arbitration;

(B) The spouse or domestic partner of a lawyer in the arbitration; or

(C) Currently associated in the private practice of law with a lawyer in the arbitration.

(3) [Significant personal relationship with lawyer or party] The arbitrator or a member of the arbitrator’s immediate family has or has had a significant personal relationship with any party or a lawyer for a party.

(4) [Service as arbitrator] The arbitrator is serving or, within the preceding five years, has served:

(A) As a neutral arbitrator in another arbitration involving a party to the current arbitration or a lawyer for a party; if the arbitrator is serving or has served in this capacity, he or she must disclose the information required by Code of Civil Procedure section 1281.9(a)(3).

(B) As a party-appointed arbitrator in another arbitration for either a party to the current arbitration or a lawyer for a party, or if the arbitrator is serving or has served in this capacity, he or she must disclose the information required by Code of Civil Procedure section 1281.9(a)(4).

(C) As a neutral arbitrator in another arbitration in which he or she was selected by a person serving as a party-appointed arbitrator in the current arbitration.  If the arbitrator is serving or has served in this capacity, he or she must disclose the information required by Code of Civil Procedure section 1281.9(a)(3).

In addition, if the combined total of the cases disclosed under (A), (B), and (C) is greater than five, the arbitrator must provide a summary that states the total number of cases in which the arbitrator served in each capacity and the number of cases in which the party to the current arbitration or the party represented by the lawyer for a party in the current arbitration was the prevailing party.

(5) [Service as other dispute resolution neutral] The arbitrator is serving or has served as a dispute resolution neutral other than an arbitrator in another pending or prior case involving a party or lawyer in the current arbitration or a lawyer who is currently associated in the private practice of law with a lawyer in the arbitration.

(A) [Timeframe] For purposes of subdivision (b)(5), “prior case” means any case in which the arbitrator concluded his or her service as a dispute resolution neutral within two years prior to the date of the arbitrator’s proposed nomination or appointment, but does not include any case in which the arbitrator concluded his or her service before January 1, 2002.

(B) [Information about cases involving payment] If the arbitrator was or will be paid for serving in such a capacity, he or she must disclose:

(i) the number of pending and prior cases in which he or she was or will be paid for serving in each capacity for each party, lawyer in the arbitration, or other lawyer currently associated in the private practice of law with a lawyer in the arbitration; and

(ii) in each such case in which the arbitrator rendered a decision as a temporary judge or referee, the date of the decision, the prevailing party, the names of the parties’ attorneys, and the amount of monetary damages awarded, if any.

(C) [Summary of case information] If the total of the cases disclosed under this paragraph (5) is greater than five, the arbitrator must also provide a summary that states the number of cases in which the arbitrator rendered a decision as a temporary judge or referee in which the party to the current arbitration or the party represented by the lawyer in the current arbitration was the prevailing party.

(D) [Services commenced prior to July 1, 2002] An arbitrator will be deemed to have complied with this requirement with respect to any such services commenced prior to July 1, 2002, if the arbitrator declares in writing that he or she has requested the required information from any dispute resolution provider organization administering those prior services and has disclosed all required information pertaining to those services within his or her knowledge.

(6) [Attorney-client relationships] Any attorney-client relationship the arbitrator has or has had with a party or lawyer for a party. Attorney-client relationships include the following:

(A) A party or an officer, a director, or a trustee of a party is or, within the preceding two years, was a client of the arbitrator in the arbitrator’s private practice of law or a client of a lawyer with whom the arbitrator is or was associated in the private practice of law;

(B) A lawyer for a party is or, within the preceding two years, was a client of the arbitrator in the arbitrator’s private practice of law; and

(C) In any other proceeding involving the same issues, the arbitrator gave advice to a party or a lawyer in the arbitration concerning any matter involved in the arbitration.

(7) [Other professional relationships]  Any other professional relationship the arbitrator or a member of the arbitrator’s immediate family has or has had with a party or lawyer for a party.  Professional relationships include the following:

(A) The arbitrator or a member of the arbitrator’s immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a party;

(B) The arbitrator or a member of the arbitrator’s immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a lawyer in the arbitration; and

(C) The arbitrator is, or, within the preceding two years, was associated in the private practice of law with a lawyer in the arbitration .

(8) [Financial interests in party] The arbitrator or a member of the arbitrator’s immediate family has a financial interest in a party.

(9) [Financial interests in subject of arbitration] The arbitrator or a member of the arbitrator’s immediate family has a financial interest in the subject matter of the arbitration.

(10) [Affected interest] The arbitrator or a member of the arbitrator’s immediate family has an interest that could be substantially affected by the outcome of the arbitration.

(11) [Knowledge of disputed facts]  The arbitrator or a member of the arbitrator’s extended family has personal knowledge of disputed evidentiary facts relevant to the arbitration.  A person who is likely to be a material witness in the proceeding is deemed to have personal knowledge of disputed evidentiary facts concerning the proceeding.

(12) [Information about provider organization in consumer arbitrations] In a consumer arbitration as defined in standard 2 in which the arbitrator was appointed on or after January 1, 2003, any significant past, present, or currently expected financial or professional relationship or affiliation between that dispute resolution provider organization and a party or lawyer in the arbitration.

(A) [Provider organization and party or lawyer in arbitration] Information about the relationships or affiliations between the dispute resolution provider organization and a party or lawyer in the arbitration that must be disclosed under this paragraph include:

(i) The provider organization has a financial interest in a party.

(ii) A party, a lawyer in the arbitration, or a law firm with which a lawyer in the arbitration is currently affiliated is a member of or has a financial interest in the provider organization.

(iii) Within the preceding two years the provider organization has received a gift, bequest, or favor from a party, a lawyer in the arbitration, or a law firm with which a lawyer in the arbitration is currently affiliated.

(iv) The provider organization has entered into, or the arbitrator currently expects that the provider organization will enter into, an agreement or relationship with any party or lawyer in the current arbitration or a law firm with which a lawyer in the current arbitration is currently affiliated under which the provider organization will administer, coordinate, or provide dispute resolution services in other matters or will provide other consulting services for that party, lawyer, or law firm.

(v) The provider organization is coordinating, administering, or providing dispute resolution services or has coordinated, administered, or provided such services in another pending or prior case in which a party or lawyer in the current arbitration was a party or a lawyer.

(B) [Provider organization and arbitrator] If a relationship or affiliation is disclosed under paragraph (12), the arbitrator must also provide information about the following:

(i) Any financial relationship or affiliation the arbitrator has with the provider organization other than receiving referrals of cases;

(ii) The provider organization’s process and criteria for recruiting, screening, and training the panel of arbitrators from which the arbitrator in this case is to be selected;

(iii) The provider organization’s process for identifying, recommending, and selecting potential arbitrators for specific cases; and

(iv) Any role the provider organization plays in ruling on requests for disqualification of the arbitrator.

(C) [Prior case, timeframe] For purposes of paragraph (b)(v), “prior case” means a case in which the dispute resolution neutral affiliated with the provider organization concluded his or her service within the two years before the date of the arbitrator’s proposed nomination or appointment, but does not include any case in which the dispute resolution neutral concluded his or her service before July 1, 2002.

(D) [Case information] If the provider organization is acting or has acted in any of the capacities described in paragraph (b)(v), the arbitrator must disclose the number of pending and prior cases involving each party or lawyer in the arbitration in which the provider organization is acting or has acted in such capacity.  The arbitrator must also disclose the date of the decision, the prevailing party, the names of the parties’ attorneys, and the amount of monetary damages awarded, if any, in each such prior case in which a dispute resolution neutral affiliated with the provider organization rendered a decision as an arbitrator, a temporary judge appointed under article VI, § 4 of the California Constitution, or a referee appointed under Code of Civil Procedure sections 638 or 639.

(E)  (Summary information about cases) If the total number of cases disclosed under paragraph (B)(v) is greater than five, the arbitrator must also provide a summary that states the number of such prior cases in which a neutral affiliated with the provider organization rendered a decision as an arbitrator, a temporary judge, or a referee in which the party to the current arbitration or the party represented by the lawyer in the current arbitration was the prevailing party.

(F) [Reliance on information provided by provider organization] Except as to the information in (B)(i), an arbitrator may rely on information supplied by the provider organization in making the disclosures required by subdivisions (b)(12) (A) and (B) of this standard.  If the information that must be disclosed is available on the Internet, the arbitrator may comply with the obligation to disclose this information by providing the Internet address at which the information is located and notifying the party that the arbitrator will supply hard copies of this information upon request. An arbitrator will be deemed to have complied with the obligation to inform himself or herself of and to disclose the information required by subdivisions (b)(12) (A) and (B) of this standard if the arbitrator:

(i) provides a written declaration stating that he or she has asked the dispute resolution provider organization for this information and identifying any category of information that the arbitrator was not able to obtain from the provider organization; and

(ii) has disclosed all the information within his or her knowledge pertaining to the relationships between the provider organization and the parties and lawyers in the arbitration.

(G) An arbitrator is not required to make the disclosures required by subdivision (b)(12) if he or she reasonably believes that the arbitration is not a consumer arbitration based on reasonable reliance on a consumer party’s representation that the arbitration is not a consumer arbitration.

(H) [Effective date] The provisions of subdivision (b)(12) of this standard take effect on January 1, 2003.  Persons who are serving in arbitrations in which they were appointed to serve as arbitrators before January 1, 2003, are not subject to subdivision (b)(12) in those pending arbitrations.

(13) [Membership in organizations practicing discrimination] The arbitrator’s membership in any organization that practices invidious discrimination on the basis of race, sex, religion, national origin, or sexual orientation.  Membership in a religious organization, an official military organization of the United States, or a nonprofit youth organization need not be disclosed unless it would interfere with the arbitrator’s proper conduct of the proceeding or would cause a person aware of the fact to reasonably entertain a doubt concerning the arbitrator’s ability to act impartially.

(14) Any other matter that:

(A) Might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial;

(B) Leads the proposed arbitrator to believe there is a substantial doubt as to his or her capacity to be impartial, including, but not limited to, bias or prejudice toward a party, lawyer, or law firm in the arbitration; or

(C) Otherwise leads the arbitrator to believe that his or her disqualification will further the interests of justice.

(c) [Inability to conduct or timely complete proceedings] In addition to the matters that must be disclosed under subdivision (b), an arbitrator must also disclose:

(1) If the arbitrator is not able to properly perceive the evidence or properly conduct the proceedings because of a permanent or temporary physical impairment; and

(2) Any constraints on his or her availability known to the arbitrator that will interfere with his or her ability to commence or complete the arbitration in a timely manner.

(d) [General provisions] For purposes of this standard:

(1) [Obligation regarding extended family relationships] An arbitrator will be deemed to have complied with the obligation to inform himself or herself of and to disclose relationships involving his or her extended family and former spouse if the arbitrator (i) declares in writing that he or she has sought information about these relationships from the members of his or her immediate family and any members of his or her extended family living in his or her household and (ii) has disclosed all the information pertaining to these relationships within his or her knowledge.

(2) [Collective bargaining cases excluded] The terms “cases” and “any arbitration” do not include collective bargaining cases or arbitrations conducted under or arising out of collective bargaining agreements between employers and employees or between their respective representatives.

(3) [Offers of employment or professional relationship] An arbitrator is not required to disclose an offer of employment or professional relationship from a party or lawyer in the arbitration or a lawyer or law firm that is currently associated in the private practice of law with a lawyer in the arbitration if the arbitrator has informed the parties about the offer and has sought their consent as required by subdivision (d) of standard 10.

(4) [Names of parties in cases] When information, including names of parties, is disclosed about a case, in order to preserve confidentiality, it is sufficient to give the name of any party who is not a party to the pending arbitration as “claimant” or “respondent” if the party is an individual and not a business or corporate entity.

(e) [Continuing duty] An arbitrator’s duty to inform himself or herself of and to disclose the matters described in subdivisions (b) and (c) of this standard, except those matters described in subdivision (b)(12) of this standard, is a continuing duty, applying from service of the notice of the arbitrator’s proposed nomination or appointment until the conclusion of the arbitration proceeding.  With regard to matters enumerated in subdivision (b)(12) of this standard, after making the initial disclosure required by subdivision (f) of this standard in an arbitration, an arbitrator does not have a continuing duty to inform himself or herself of or to disclose these matters in that arbitration.

(f) [Time of disclosure] Within the time specified in Code of Civil Procedure section 1281.9(b), a proposed neutral arbitrator must disclose all matters in subdivisions (b) and (c) of this standard of which the arbitrator is then aware.  Except for matters described in subdivision (b)(12) of this standard, if an arbitrator subsequently becomes aware of a matter that must be disclosed under either subdivision (b) or (c) of this standard, the arbitrator must disclose that matter to the parties as soon as practicable, but in no event more than 10 calendar days after the arbitrator becomes aware of the matter.

Comment to Standard 7

Timely disclosure to the parties is the primary means of ensuring the impartiality of a neutral arbitrator. It provides the parties with the necessary information to make an informed selection of a neutral arbitrator by disqualifying or ratifying the proposed arbitrator following disclosure.  See also standard 10, concerning disclosure and disqualification requirements relating to concurrent and subsequent employment or professional relationships between an arbitrator and a party or attorney in the arbitration.  A party may disqualify an arbitrator for failure to comply with statutory disclosure obligations (see Code Civ. Proc., § 1281.91(a)).  Failure to disclose, within the time required for disclosure, a ground for disqualification of which the arbitrator was then aware is a ground for vacatur of the arbitrator’s award (see Code Civ. Proc., § 1286.2(a)(6)(A)).

The neutral arbitrator’s overarching duty under this standard, which mirrors the duty set forth in Code of Civil Procedure section 1281.9, is to inform parties about matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.  While the remaining subparagraphs of (b) require the disclosure of specific interests, relationships, or affiliations, these are only examples of common matters that could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial. The absence of particular interests, relationships, or affiliations listed in the subparagraphs does not necessarily mean that there is no matter that could reasonably raise a question about the arbitrator’s ability to be impartial and that therefore must be disclosed.  An arbitrator must make determinations concerning disclosure on a case-by-case basis, applying the general criteria for disclosure under paragraph (b).

Code of Civil Procedure section 1281.85 specifically requires that the ethical standards adopted by the Judicial Council address the disclosure of interests, relationships, or affiliations that may constitute conflicts of interest, including prior service as an arbitrator or other dispute resolution neutral entity.  Section 1281.85 further provides that the standards “shall be consistent with the standards established for arbitrators in the judicial arbitration program and may expand but may not limit the disclosure and disqualification requirements established by this chapter [chapter 2 of title 9 of part III, Code of Civil Procedure, sections 1281–1281.95].”

Code of Civil Procedure section 1281.9 already establishes detailed requirements concerning disclosures by arbitrators, including a specific requirement that arbitrators disclose the existence of any ground specified in Code of Civil Procedure section 170.1 for disqualification of a judge. This standard does not eliminate or otherwise limit those requirements; in large part, it simply consolidates and integrates those existing statutory disclosure requirements by topic area.  This standard does, however, expand upon or clarify the existing statutory disclosure requirements in the following ways:

• Expanding the existing duty of reasonable inquiry that applies with respect to financial interests under Code of Civil Procedure section 170.1(a)(3), to require arbitrators to make a reasonable effort to inform themselves about all matters that must be disclosed (subdivision (b)).  The standards also clarify what constitutes a reasonable effort by an arbitrator to inform himself or herself about relationships of his or her extended family.

• Expanding required disclosures about the relationships or affiliations of an arbitrator’s family members to include those of an arbitrator’s domestic partner (subdivisions (b)(1) and (2); see also definitions of immediate and extended family in standard 2).

• Requiring arbitrators, in addition to making statutorily required disclosures regarding prior service as an arbitrator for a party or attorney for a party, to disclose prior services both as neutral arbitrator selected by a party arbitrator in the current arbitration and as any other type of dispute resolution neutral for a party or attorney in the arbitration (e.g., temporary judge, mediator, or referee) (subdivisions (b)(4)(C) and (5)).

• Requiring the arbitrator to disclose if he or she or a member of his or her immediate family is or was an employee, expert witness, or consultant for a party or a lawyer in the arbitration (subdivisions (b)(7)(A) and (B)).

• Requiring the arbitrator to disclose if he or she or a member of his or her immediate family has an interest that could be substantially affected by the outcome of the arbitration (subdivision (b)(10)).

• In consumer arbitrations, requiring arbitrators to disclose their relationship with the dispute resolution provider organization that is administering the arbitration and any financial or professional relationship between the provider organization and any party, attorney, or law firm in the arbitration (subdivision (b)(12)).

• If a disclosure includes information about five or more cases, requiring arbitrators to provide a summary of that information (subdivisions (b)(4), (5), and (12).

• Requiring arbitrators to disclose membership in organizations that practice invidious discrimination on the basis of race, sex, religion, national origin, or sexual orientation (subdivision (b)(13)).

• Requiring the arbitrator to disclose any constraints on his or her availability known to the arbitrator that will interfere with his or her ability to commence or complete the arbitration in a timely manner (subdivision (c)).

• Clarifying that the duty to make disclosures is a continuing obligation, requiring disclosure of matters that were not known at the time of nomination or appointment but that become known afterward (subdivision (e)).

• Requiring arbitrators to disclose to the parties as soon as practicable after its discovery any matter about which they become aware after the time for making an initial disclosure has expired, but in no event more than 10 calendar days after the arbitrator becomes aware of the matter (subdivision (f)).

Subdivision (b).  Currently expected relationships or affiliations that must be disclosed include all relationships or affiliations that the arbitrator, at the time the disclosure is made, expects will be formed. For example, if the arbitrator knows that the administering provider organization has agreed in concept to enter into a business relationship with a party, but they have not yet signed a written agreement formalizing that relationship, this would be a “currently expected” relationship that the arbitrator would be required to disclose.

It is good practice for an arbitrator to ask each participant to make an effort to disclose any matters that may affect the arbitrator’s ability to be impartial.

Standard 8. Disqualification

(a) An arbitrator is disqualified if:

(1) The arbitrator fails to make a required disclosure within the time specified in Code of Civil Procedure section 1281.9(b) and a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91;

(2) The arbitrator makes a required disclosure within the time specified in Code of Civil Procedure section 1281.9(b) and, based on that disclosure, a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91;

(3) After the time specified in Code of Civil Procedure section 1281.9(b), an arbitrator makes a required disclosure and, based on that disclosure, a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91; or

(4) A party becomes aware that an arbitrator has made a material omission or material misrepresentation in his or her disclosure and within 15 days after becoming aware of the omission or misrepresentation and within the time specified in Code of Civil Procedure section 1281.91(c), the party serves a notice of disqualification that clearly describes the material omission or material misrepresentation and how and when the party became aware of this omission or misrepresentation; or

(5) If any ground specified in Code of Civil Procedure Section 170.1 exists and the party makes a demand that the arbitrator disqualify himself or herself, in the manner and within the time specified in Code of Civil Procedure section 1281.91(d).

(b) For purposes of this standard, “required disclosure” means a disclosure required under standard 7 or Code of Civil Procedure section 1281.9.

(c) Notwithstanding any contrary request, consent, or waiver by the parties, an arbitrator must disqualify himself or herself if he or she concludes at any time during the arbitration that he or she is not able to conduct the arbitration impartially.

Comment to Standard 8

Code of Civil Procedure section 1281.91 already establishes requirements concerning disqualification of arbitrators.  This standard does not eliminate or otherwise limit those requirements or change existing authority or procedures for challenging an arbitrator’s failure to disqualify himself or herself. The provisions of subdivisions (a)(1) and (2) restate existing disqualification procedures under section 1281.91(a) and (b) when an arbitrator makes, or fails to make, initial disclosures. The provisions of subdivisions (a)(3) and (4) clarify the requirements relating to disqualification based on disclosure made by the neutral arbitrator after appointment or based on the discovery by the party of a material omission or misrepresentation in the arbitrator’s disclosure.

Standard 9. Duty to refuse gift, bequest, or favor

(a) An arbitrator must not, under any circumstances, accept a gift, bequest, favor, or honoraria from a party or any other person or entity whose interests are reasonably likely to come before the arbitrator in the arbitration.

(b) From service of notice of appointment or appointment until two years after the conclusion of the arbitration, an arbitrator must not, under any circumstances, accept a gift, bequest, favor, or honoraria from a party or any other person or entity whose interests have come before the arbitrator in the arbitration.

(c) An arbitrator must discourage members of his or her family residing in his or her household from accepting a gift, bequest, favor, or honoraria that the arbitrator would be prohibited from accepting under subdivisions (a) or (b).

(d) This standard does not prohibit an arbitrator from demanding or receiving a fee for services or expenses.

Comment to Standard 9

Gifts and favors do not include any rebate or discount made available in the regular course of business to members of the public.

Standard 10. Duties and limitations regarding future professional relationships or employment

(a) [Offers as lawyer, expert witness, or consultant] From the time of appointment until the conclusion of the arbitration, an arbitrator must not entertain or accept any offers of employment or new professional relationships as a lawyer, an expert witness, or a consultant from a party or a lawyer in the pending arbitration or a lawyer or law firm that is currently associated in the private practice of law with a lawyer in the arbitration.

(b) [Offers for other employment or professional relationships] In addition to the disclosures required by standard 7, within the time specified in subdivision (b) of Code of Civil Procedure section 1281.9, a proposed arbitrator must disclose whether or not he or she will entertain offers of employment or new professional relationships in any capacity other than as a lawyer, expert witness, or consultant from a party, a lawyer in the arbitration, or a lawyer or law firm that is currently associated in the private practice of law with a lawyer in the arbitration while that arbitration is pending, including offers to serve as a dispute resolution neutral in another case.  A party may disqualify the arbitrator based on this disclosure by serving a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91(b).

(c) [Acceptance of offers prohibited unless intent disclosed] If an arbitrator fails to make the disclosure required by subdivision (b) of this standard or if, in the disclosure made pursuant to subdivision (b), the arbitrator states that he or she will not entertain offers of employment or new professional relationships from the time of appointment until the conclusion of the arbitration, the arbitrator must not entertain or accept any such offers, including offers to serve as a dispute resolution neutral.

(d) [Informed consent required in consumer arbitrations] If, in the disclosure made under subdivision (b), the arbitrator states that he or she will entertain offers of employment or new professional relationships, the arbitrator may entertain such offers.  However, in consumer arbitrations, from the time of appointment until the conclusion of the arbitration, the arbitrator must not accept any such offers without the informed consent of all parties to the current arbitration.

(1) Unless the arbitrator rejects the offer, within five days of receiving any such offer, the arbitrator in a consumer arbitration must notify the parties in writing of the offer and of the parties’ right to object to the arbitrator accepting that offer within seven days.

(2) If within seven days after the arbitrator serves this written notice, no party objects to the arbitrator accepting the offer, the arbitrator may accept it.

(3) If an arbitrator has informed the parties in a pending arbitration about an offer and has sought the parties’ consent as required by this subdivision, the arbitrator is not also required to disclose that offer under standard 7.

(4) An arbitrator is not required to seek the parties consent under this subdivision if he or she reasonably believes that the arbitration is not a consumer arbitration based on reasonable reliance on a consumer party’s representation that the arbitration is not a consumer arbitration.

(e) [Relationships and use of confidential information related to the arbitrated case]  An arbitrator must not at any time,

(1) Without the informed written consent of all parties, enter into any professional relationship or accept any professional employment as a lawyer, an expert witness, or a consultant relating to the case arbitrated; or

(2) Without the informed written consent of the party, enter into any professional relationship or accept employment in another matter in which information that he or she has received in confidence from a party by reason of serving as an arbitrator in a case is material.

Standard 11. Conduct of proceeding

(a) An arbitrator must conduct the arbitration fairly, promptly, and diligently and in accordance with the applicable law relating to the conduct of arbitration proceedings.

(b) In making the decision, an arbitrator must not be swayed by partisan interests, public clamor, or fear of criticism.

Comment to Standard 11

Subdivision (a). The arbitrator’s duty to dispose of matters promptly and diligently must not take precedence over the arbitrator’s duty to dispose of matters fairly.

Conducting the arbitration in a procedurally fair manner includes conducting a balanced process in which each party is given an opportunity to participate. When one but not all parties are unrepresented, an arbitrator must ensure that the party appearing without counsel has an adequate opportunity to be heard and involved. Conducting the arbitration promptly and diligently requires expeditious management of all stages of the proceeding and concluding the case as promptly as the circumstances reasonably permit. During an arbitration, an arbitrator may discuss the issues, arguments, and evidence with the parties or their counsel, to make interim rulings, and otherwise to control or direct the arbitration.  This standard is not intended to restrict these activities.

The arbitrator’s duty to uphold the integrity and fairness of the arbitration process includes an obligation to make reasonable efforts to prevent delaying tactics, harassment of any participant, or other abuse of the arbitration process. It is recognized, however, that the arbitrator’s reasonable efforts may not successfully control all conduct of the participants.

For the general  law relating to the conduct of arbitration proceedings, see chapter 3 of title 9 of part III of the Code of Civil Procedure, sections 1282–1284.2, relating to the conduct of arbitration proceedings.  See also Code of Civil Procedure section 1286.2 concerning an arbitrator’s unreasonable refusal to grant a continuance as grounds for vacatur of the award.

 Standard 12. Ex parte communications

(a) An arbitrator must not initiate, permit, or consider any ex parte communications or consider other communications made to the arbitrator outside the presence of all of the parties concerning a pending or impending arbitration, except as permitted by this standard, by agreement of the parties, or by applicable law.

(b) An arbitrator may communicate with a party in the absence of other parties about administrative matters, such as setting the time and place of hearings or making other arrangements for the conduct of the proceedings, as long as the arbitrator reasonably believes that the communication will not result in a procedural or tactical advantage for any party. When such a discussion occurs, the arbitrator must promptly inform the other parties of the communication and must give the other parties an opportunity to respond before making any final determination concerning the matter discussed.

(c) An arbitrator may obtain the advice of a disinterested expert on the subject matter of the arbitration if the arbitrator notifies the parties of the person consulted and the substance of the advice and affords the parties a reasonable opportunity to respond.

Comment to Standard 12

See also Code of Civil Procedure sections 1282.2(e) regarding the arbitrator’s authority to hear a matter when a party fails to appear and 1282.2(g) regarding the procedures that must be followed if an arbitrator intends to base an award on information not obtained at the hearing.

Standard 13. Confidentiality

(a) An arbitrator must not use or disclose information that he or she received in confidence by reason of serving as an arbitrator in a case to gain personal advantage. This duty applies from acceptance of appointment and continues after the conclusion of the arbitration.

(b) An arbitrator must not inform anyone of the award in advance of the time that the award is given to all parties.  This standard does not prohibit an arbitrator from providing all parties with a tentative or draft decision for review or from providing an award to an assistant or to the provider organization that is coordinating, administering, or providing the arbitration services in the case for purposes of copying and distributing the award to all parties.

 Standard 14. Compensation

(a) An arbitrator must not charge any fee for services or expenses that is in any way contingent on the result or outcome of the arbitration.

(b) Before accepting appointment, an arbitrator, a dispute resolution provider organization, or another person or entity acting on the arbitrator’s behalf must inform all parties in writing of the terms and conditions of the arbitrator’s compensation. This information must include any basis to be used in determining fees and any special fees for cancellation, research and preparation time, or other purposes.

Standard 15. Marketing

(a) An arbitrator must be truthful and accurate in marketing his or her services and must not make any representation that directly or indirectly implies favoritism or a specific outcome.  An arbitrator must ensure that his or her personal marketing activities and any activities carried out on his or her behalf, including any activities of a provider organization with which the arbitrator is affiliated, comply with this requirement.

(b) An arbitrator must not solicit business from a participant in the arbitration while the arbitration is pending.

Comment to Standard 15

Subdivision (b). This provision is not intended to prohibit an arbitrator from accepting another arbitration from a party or attorney in the arbitration while the first matter is pending, as long as the arbitrator complies with the provisions of standard 10 and there was no express solicitation of this business by the arbitrator.

 

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