Serving as a Party-Appointed Arbitrator
A party-appointed arbitrator and an umpire decide in the same way: each according to his or her best view of the contract, the evidence, and the law. They differ in responsibility, not in standard. A party-appointed arbitrator has a responsibility to hear and understand the appointing party's positions fully, and to see that those positions receive consideration in the panel's deliberations.
A party-appointed arbitrator is not an advocate, and Marc Mayerson does not receive ex parte communications unless permitted by governing instruments. In the light of experience on both sides of coverage disputes, Marc has found that panels give the greatest weight to the arbitrator they trust to be fair. That trust is what allows a party's position to be understood and given its due.
Retaining Marc Mayerson
Arbitration and mediation. Marc welcomes, and encourages, a preliminary conversation with counsel considering him as a party-appointed arbitrator or mediator. That conversation should cover conflicts, availability, the general nature of the dispute, and, where the parties' agreement contemplates it, the selection of the umpire. It may also address Marc's general approach and understanding, which can be previewed in the context of the general fact pattern. It is inappropriate, however, to condition his engagement on his pre-commitment to rule one way or another. Nothing is expected to follow from the conversation; if counsel decides that another neutral is a better fit, that is perfectly fine. Once appointed, Marc does not receive ex parte communications unless permitted by governing instruments.
Expert witness engagements. Counsel should approach an initial conversation with a potential testifying expert understanding that, if Marc is retained and testifies, parts of counsel's communications with him may be discoverable at deposition and at trial. Under the federal rules, and many state rules, communications between counsel and a testifying expert are generally protected. The exceptions are communications about compensation, facts or data that counsel provides and the expert considers, and assumptions that counsel asks the expert to rely on. Those are open to discovery. Rules vary by jurisdiction. For that reason, Marc suggests that a preliminary conversation be kept general, enough to identify conflicts and the issues on which an opinion is sought. Counsel can then decide what materials to provide and in what form. Marc is also available as a consulting, non-testifying expert, where different protections generally apply.