In the “old” days, there was an arbitrator list. Then the rules changed and there were two lists. Then there were three lists. As it stands now, if a party gets an arbitrator list from FINRA, each of the three sub-lists has eight names on it.
Under the current rules, each party is permitted to strike four names from each of the three lists. So, mathematically, the parties could end up striking all 24 names on the list. When this occurs, FINRA dives back into the pool and chooses three arbitrators that no party selected. This is supposedly random, but my experience shows very little randomness to it.
FINRA has proposed a change. They want to send out lists with ten names on each sub-list, but continue to give the parties only four strikes. In a two-party case, that would, theoretically, leave two names. Also theoretically, these could be the two people on each sublist that the lawyer disliked slightly less than the four that were stricken. In other words, the parties could end up agreeing on arbitrators that they still don’t like, but not as much as the four they each struck.
This is intended, I believe, to remove some of the administrative burden on FINRA staff. If they are guaranteed to have two arbitrators left on all three sub-lists, in most cases, then they don’t have to go back into the pool for new arbitrators. In theory, this might work. What it may also do is remove what appears to be the lack of randomness when the parties strike all the names. At least two names will remain and the parties will not be surprised by the designation to the panel.
I think this is a bit of “the devil you know is better than the devil you don’t know.” Like I said, at least the panel will have names ranked by a party, in most cases. I can’t even decide if this is a good or bad thing. I think it’s good. Only time will tell.
That’s the viewpoint of one lawyer from Jupiter, Palm Beach County, Florida. I’m Marc Dobin.