Arbitration Insight No. 19

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 19

ARBITRATORS NEED NOT DISCLOSE BACKGROUND FACTS IRRELEVANT TO THE CASES BEFORE THEM

It is accepted that arbitrators have a duty, pursuant to Code of Civil Procedure section 1281.9(a), to disclose matters that could cause a person to reasonably entertain a doubt about their impartiality but Rebmann v. Rohde (2011) 196 Cal.App.4th 1283 (hearing denied September 14, 2011) holds that this disclosure duty does not extend to information about an arbitrator’s background that has nothing to do with the facts of the case.
In Rebmann, Rohde sued his former business partner Rebmann for allegedly misrepresenting material facts about their joint venture. (Relevant only to post-arbitration proceedings was that Rohde was born in Berlin in 1943, his father had been in the German Army in World War II and his father-in-law had been a member of the German SS during the War.) The lawsuit was arbitrated. The arbitrator made no disclosures specific to the case and the matter was heard on its merits. The arbitrator ultimately found that the Rohde parties had not proved any of their claims and awarded the Rebmann parties $1,000 on their counterclaims and $1,136,000 in attorney’s fees and costs.
Rohde opposed Rebmann’s petition to confirm the award, contending that the arbitrator should have disclosed that he and his parents were German Jews, had lost family and property in the Holocaust and were members of an organization dedicated to avoiding a repeat of the Holocaust.
The appellate court was dismissive of Rhode’s argument and affirmed the judgment to confirm the award because, relying upon Haworth v. Superior Court (2010) 50 Cal.4th 372 (see Arbitration Insight No. 16), there was nothing in the arbitrator’s professional record to indicate a bias towards anyone, no less Germans. More importantly, the arbitrator’s background had nothing to do with the facts of the case, which had nothing to do with World War II or the Holocaust. (Id. at pp. 1291-1292.)
Rebmann also rejects the assumption that an arbitrator or “judge who is a member of a minority cannot be fair when a case somehow related to that minority status—no matter how remote or tenuous that relationship might be—comes before that judge. A judge or arbitrator’s impartiality should never be questioned simply because of who he or she is.” (Id. at p. 1293.)
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, September 2011

Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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