When a small business finds itself up against a corporate giant like Amazon, every strategic advantage counts—even in arbitration. The arbitrator you choose can dramatically influence the outcome of your dispute. This guide offers practical, actionable steps to help you identify an arbitrator who understands the challenges of a small enterprise and will fairly assess your case.
Understand Arbitrator Bias and Sympathy
Before you start scanning resumes and LinkedIn profiles, it’s essential to grasp the common biases that might affect arbitrators:
Repeat-Player Bias
Large corporations often use arbitration as a preferred dispute resolution method, meaning they appear repeatedly before the same arbitrators. This information advantage may lead some arbitrators to unconsciously lean toward decisions that favor big companies simply because they expect to be re-engaged by these powerful players later. Stanford Graduate School of Business research highlights that pro-business arbitrators get picked more often, creating a potential bias that small businesses must navigate.
The “Split-the-Baby” Tendency
There’s a common perception that arbitrators sometimes try to balance their decisions by awarding a compromise outcome—a so-called “split-the-baby” solution—to avoid alienating repeat corporate clients. Although ethical rules prevent arbitrators from basing decisions solely on future business prospects, subtle psychological pressures can still lead them to favor the big corporation’s position (Plaintiff’s Magazine).
Empathy and Fairness
On a brighter note, many arbitrators are committed to impartiality and fairness. A truly balanced arbitrator will listen closely to both sides, understand the pressures faced by a small business, and strive to apply the law justly—even when up against a corporate behemoth.
Look for Small Business-Friendly Background Elements
The next step is to review the arbitrator’s background for clues about their potential sympathy for small businesses:
History of Advocating for Small Businesses or Consumers
Examine their résumé or bio for any indication that they have represented small businesses, startups, or individual consumers. An arbitrator with a track record in consumer protection or pro bono work for entrepreneurs is more likely to empathize with your situation.
Experience in Relevant Areas
Match the arbitrator’s expertise to your dispute’s subject matter. For example, if you’re contesting an e-commerce contract with Amazon, you’ll want someone well-versed in contract law, commercial litigation, or e-commerce disputes. Since AAA arbitrators are typically seasoned lawyers or former judges, focus on those who have handled similar cases.
Balanced Career vs. BigLaw Career
Consider the breadth of the arbitrator’s experience. A career spent solely defending Fortune 500 companies may indicate a more corporate mindset. In contrast, someone with a diverse background—perhaps including work in a government consumer protection agency or a small law firm—may have a more balanced perspective that benefits small business owners.
Publications and Speaking Engagements
Look for articles, blog posts, or presentations where the arbitrator discusses fairness in arbitration, consumer rights, or small business issues. Even a well-timed LinkedIn post about “leveling the playing field in disputes” can be a positive sign of their outlook.
Research Arbitrator Profiles and Resumes
Once you have a list of potential candidates from AAA, delve into their professional profiles:
AAA Arbitrator Resume
AAA provides detailed profiles for each arbitrator. Read these carefully for sections detailing the types of cases they’ve handled, their legal history, and any special panels (e.g., consumer or technology panels). An arbitrator who highlights experience with “resolved numerous small business contract conflicts” can be an excellent choice.
Professional Website or Bio
Many arbitrators maintain personal websites or are featured on their firm’s site. Look for language that suggests a commitment to equitable dispute resolution—phrases like “committed to fairness for all parties” or “experienced in representing both plaintiffs and defendants” signal a balanced approach.
LinkedIn and Online Profiles
LinkedIn profiles often reveal more than formal bios. Check for volunteer work (such as involvement in small business legal clinics), recommendations from small business clients, or shared content that aligns with your values. These informal signals can round out your understanding of the arbitrator’s sympathies.
Ask Around Discreetly
Use your professional network to get insider feedback. Instead of a generic “How is Arbitrator X?” ask targeted questions:
“Have you seen Arbitrator X handle cases involving large companies, and how did they treat the smaller party?”
“Does Arbitrator Y have a reputation for strictly enforcing contract terms, or do they show flexibility when policies seem unfair?”
These conversations can offer valuable context.
Look for Testimonials or Reviews
Some arbitrators, especially those who also serve as mediators, feature testimonials on their websites. Pay attention to who is providing the praise. Endorsements from individual entrepreneurs or small firms are particularly encouraging. A quick online search might also reveal forum discussions or news articles about their past arbitration experiences.
Examine Past Decisions and Rulings
While arbitration awards are typically private, there are ways to glean insights into an arbitrator’s decision-making:
Legal Research
Search legal databases like Westlaw, LexisNexis, or even Google Scholar for any cases where the arbitrator’s awards were later scrutinized in court. Court documents can sometimes reveal whether an arbitrator’s decisions have been contested due to perceived bias.
Arbitration Awards Databases
In certain sectors (like FINRA or some AAA consumer cases), redacted awards might be published. A targeted search for “[Arbitrator Name] award” or “[Arbitrator Name] AAA” in legal blogs or trade publications can highlight any consistent patterns, such as a tendency to favor corporate defendants.
Watch for Red Flags of a Corporate-Leaning Arbitrator
Even as you look for positive indicators, remain alert for signs that an arbitrator might favor corporate interests:
Career Exclusively Serving Big Companies
An arbitrator whose background reads like a corporate resume—with roles such as former senior counsel for a Fortune 50 company or a partner at a major law firm—may have a corporate-centric worldview. This isn’t always a deal-breaker, but it’s a factor to consider carefully.
Repeat Engagements with the Opponent
Review the arbitrator’s disclosure statements. If they have handled multiple cases involving Amazon or similar corporations, and those cases consistently favored the big company, they may not be the best fit for your dispute. On the other hand, if a particular arbitrator was consistently struck from the list by Amazon’s counsel, that might indicate a small-business-friendly stance.
Attitude in Writings or Interviews
Pay attention to the tone and language in their writings or interviews. Red flag phrases such as “frivolous claims” or “abuse of arbitration by plaintiffs” over emphasis on “expedition proceedings“ suggest a bias against small businesses. Conversely, a commitment to fairness and balanced dispute resolution is a positive sign.
Lack of Diversity in Experience
An arbitrator with experience limited solely to large-scale corporate disputes might not fully understand the unique challenges of a small business. Look for a diverse professional background that includes some exposure to the small business or consumer side of the legal spectrum.
No Indication of Impartiality in References
Online reviews, industry forums, or even discussions with colleagues might reveal if an arbitrator tends to side with megacorporations like Amazon. Using your right to strike arbitrators with known biases is essential.
Strategically Frame Your Case for the Arbitrator
Even after selecting the right arbitrator, how you present your case can significantly impact their decision:
Emphasize Fairness and Equity
From the outset, stress that you’re not seeking an undue windfall but rather the fair enforcement of the contract. Acknowledge the arbitrator’s role as an impartial decision-maker and express respect for the process. For example:
“We’re simply asking for the benefit of the bargain we signed—nothing more, nothing less.”
Tell Your Story Concisely
Humanize your dispute by briefly sharing the real-world impact on your business. Explain your mission, the hard work behind your business, and how the dispute affects your employees and customers. A relatable narrative can foster empathy—even in an arbitrator tasked with being strictly neutral.
Highlight Any Power Imbalance (Tactfully)
Frame the David-versus-Goliath nature of your dispute without resorting to emotional appeals. Explain that the contract was non-negotiable and that your business was forced to accept Amazon’s standard terms. This approach subtly underscores the need for fairness without appearing combative.
Focus on Contract and Law – Show the Merits
Present a well-organized, fact-based case that clearly ties your argument to the contract’s language and the applicable law. If Amazon violated a specific contractual provision (e.g., “Section X requires 30 days’ notice before termination”), spotlight this discrepancy to provide a solid legal basis for your claim.
Demonstrate Reasonableness
Maintain professionalism throughout the process. Be punctual, cooperative, and solutions-oriented. If you have a record of settlement discussions or attempted concessions, highlight these efforts to show that you’re reasonable—even when facing aggressive tactics from a large corporation.
Use Expert Witnesses or Affidavits to Level the Field
If technical issues are involved (for instance, specifics about Amazon’s platform or logistics), bolster your case with expert opinions or detailed documentation. Even a modest expert report can lend credibility to your claims and help the arbitrator see the objective merits of your position.
Acknowledge the Arbitrator’s Constraints
Recognize that while you respect the arbitrator’s duty to follow the contract and applicable law, you’re asking for a fair interpretation of those terms. This balanced approach reinforces your credibility and minimizes any perception that you’re appealing solely for sympathy.
Final Tips
Selecting an arbitrator who truly understands the struggles of a small business can level an otherwise uneven playing field. Here are a few parting thoughts:
Do Your Homework: Conduct thorough due diligence by reading profiles, searching online, and speaking with industry colleagues.
Exercise Your Rights: Use the available process to strike out arbitrators who display clear biases toward big corporate interests.
Prepare a Persuasive Case: Even an a-neutral arbitrator can be persuaded with clear legal arguments combined with a human touch—present your case in a way that appeals to reason, law, and empathy.
By combining careful arbitrator selection with savvy advocacy, you can maximize your chances of a favorable outcome—even when facing a corporate powerhouse like Amazon.
Disclaimer:
The information provided on this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading or using the information on this site. You should not act or rely on any information on this blog without seeking the advice of a licensed attorney who can provide guidance tailored to your particular circumstances. All content is provided "as is" without warranty of any kind.
Opmerkingen