As an arbitration neutral (we’re not called arbiters), I feel like there are some clarifications necessary here. First of all, the company will have a business arrangement with an arbitration service, but the payment is on a case by case basis and is paid for by BOTH parties. That’s right, just like regular court you have to pay to go to arbitration on top of paying your lawyer. You can argue that the fee should be paid by the other party if they lose, but the starting line is both parties pay.
And that means both parties get to pick their neutrals, too. A computer spits out a list of randomly picked neutrals, and the parties get to strike a few, and rank the rest. At the end of the case, all parties and the other neutrals on the panel review each other for things like fairness and professionalism, and those ratings along with case history are included.
Aside from the fact that neutrals are chosen by both parties (or more likely their lawyers), there is another huge problem with this line of thinking: arbitration can be overturned if you can prove bias on the part of the neutrals. It’s a major part of our training, especially the part where you have to disclose anything and everything that could lead to impartiality. Seriously, neutrals training is basically hearing the words “you must disclose this” a thousand times. Why? Because having an arbitration case overturned in court for bias is expensive for everyone, ruins the whole cost-saving point of the process in the first place, and destroys a neutral’s reputation if it was their fault.
Also, though a company may have repeat arbitration, the neutrals themselves are considered independent contractors and aren’t influenced by the company’s desire for repeat business (and they can’t affect how often your name is picked). If a neutral hears a case for the same company more than once, it would be both a statistical anomaly and something they would have to disclose at the start of the case. Such a disclosure would likely mean a bias challenge and the choosing of another neutral, assuming the neutral didn’t withdraw on their own as soon as the conflict was discovered (which frankly is easiest, and there’s no financial incentive to get that far and be removed because you don’t get paid unless you see the case through to the end).
