- Leonard Berkowitz
Arbitrator Certification, Credentialing, and Rosters
Updated April 2013
Certification, credentialing, and rosters are often lumped together under "qualifications", but are actually three completely different concepts. Certification is an official designation that an arbitrator has met certain standards. Credentialing is the process by which an official or quasi-official body decides what standard is set for a practitioner, and it can also mean the act of obtaining those credentials. Rosters, meanwhile, are the lists of professionals which the roster providers in question have determined to be appropriately credentialed; this may or may not involve any formal certification.
Attorneys and clients who are choosing an arbitrator need to understand all three of these terms; managers of rosters need much more, including an understanding of processes of credentialing and certification.
Typical systems for credentialing, certification, and rosters vary depending on which is under discussion.
Setting credentials for arbitrators typically involves one or a combination of paper qualifications, performance-based assessment, and experience requirements. Paper qualifications may include advanced degrees or other specialized education, or proof that a particular training course has been completed. Performance-based assessment involves either observation in actual cases by an experienced arbitrator who rates the new arbitrator's performance according to a series of performance criteria, or a similar observation in a simulated case. But unlike in mediation, where the meeting itself is the key opportunity for observation, the core of an arbitrator's work is often performed outside the presence of the parties, when the decision is made and (in many systems) a full rationale is written. In arbitration systems calling for a full written rationale for the decision, typical criteria include ability to understand the facts, and to interpret conflicting facts sensibly; to then decide the case according to the standards which actually apply to that case, typically contractual; and the ability to explain the decision convincingly and in terms which the losing party will recognize as having "had its day in court", if not agree with.
Certification is not as widely used in arbitration as it is in mediation. But where it is used, it is heavily dependent on specific knowledge of the substantive background of the particular type of case involved. In some settings, the standards for membership of a particular voluntary membership organization serve as a proxy for certification, as with the National Academy of Arbitrators, which despite its title admits only labor arbitrators to membership, but which even within that group admits only arbitrators who have written a specified number of decisions within the preceding five years. (A distinction from other fields' certification processes is that such systems as the NAA's fundamentally recognize market performance by the arbitrator in question, rather than constituting an independent assessment of the quality of the decisions.) Unlike in law, medicine, or many other older professions, there is, however, no more intellectually respectable and consistent system for certification of arbitrators at present.
Typical rosters of arbitrators are constructed based on varying combinations of the same criteria used for credentialing. Since performance-based assessment is not widely used due to expense and other factors, the focus is typically on paper qualifications and experience. Rosters, however, typically combine such screening with a market approach, allowing parties to strike names alternately from a "short list" supplied for a particular case, or to make choices using similar methods among pre-screened members of the roster. Some rosters, however, operate by random assignment of an arbitrator to a particular case once the arbitrator has been qualified for the roster, and others make purposeful choices on behalf of the parties after querying the parties as to the particular characteristics of the case. There is no overarching system that can be described as "the usual approach."
For many years, the Wisconsin Employment Relations Commission, a state agency, has maintained a roster of about 50 arbitrators of labor-management disputes. For most of that time, more than one thousand Wisconsin labor contracts specified that if the parties could not settle a particular grievance, either the employer or the union could request a short list of arbitrators from that roster. Other contracts use similar rosters (and within the same market area, often including many of the same arbitrators) maintained by the Federal Mediation and Conciliation Service, the American Arbitration Association, and other public and private agencies. There is no certification process for labor arbitrators, so none of these arbitrators is certified. All are "credentialed," however, in this case by an application process that demands detailed information about their prior experience, and, among other things, requires them to agree not to serve as an advocate for labor or management (even in unrelated cases) as long as they remain on the roster. The actual selection of a given arbitrator, then, has both random and deliberate elements: typically, a short list of five or seven names among the 50 on the roster is randomly chosen for a particular case by the agency; but the parties make the final selection within the short list, using their own sources of information as well as arbitrators' biographies supplied by the agency, and usually by alternately striking names until only one name remains.
Clients and attorneys need to know how rosters work in order to use them well. Clients and attorneys also need to understand the basics behind credentialing before accepting a supposedly qualified individual as necessarily being able to perform the required service, and further, need to understand how trivial a "certification" may be, pending the conflict resolution field's development of robust methods of certification.