One of the criticisms leveled at arbitration by critics is that frequently a party will be a repeat user of a particular arbitrator.  The argument made is that because of this familiarity over time there is implied bias by the arbitrator towards the party providing repeat business.   The New York Law Journal recently published a decision by the trail level court  in which this question was raised and in which the trial court rejected this claim where the arbitrator had made complete and timely disclosures about other arbitrations involving the same party.  United Healthcare v. Azar, Supreme Court, N.Y. County, Sept, 1,2011. 

A recent 9th Circuit decision points out the need even in mediation for the parties to consider reasonable or appropriate standards for negotiated attorney fee provisions. In re: Bluetooth Headset Products Liability Litigation, No. 09-56683 (9th Circuit, August 19, 2011).  A class action products liability claim was brought alleging that the manufacturer failed to disclose potential risk of hearing loss associated with the use of wireless headsets.  The parties reached a settlement and release that provided that (1) the defendants were to post safety information on the web; (2) pay $100,000 in cy pres awards to be distributed among four non-profit organizations (3) pay the cost of  notice up to $1.2 million and (4) pay the plaintiff's costs of $38,000 and (5) to pay attorney fees in the amount not to exceed $800,000 to the court to be divided by the nine class representatives.  There was no condition on any minimum attorney fees.

The plaintiff filed a class action complaint against the defendant bank.  Plaintiff had entered into a home-equity loan line of credit.  The loan agreement contained an arbitration clause requiring the plaintiff to resolve disputes through arbitration "whenever either party elects arbitration and provides the other party with written notice of the election to arbitrate."  Krinsk v. Suntrust Banks, Inc. et al. No. 10-11912, (11th Cir. Sept. 7, 2011).  The arbitration clause also stated that the class action claims were precluded:

... if you or we elect to arbitrate a claim, neither you nor we will have the right :(a) to participate in a class action in court or in arbitration, either as a class representative, class member or class opponent; or (b) to join or consolidate Claims with claims of any person other than you.  No arbitrator shall have authority to conduct any arbitration in violation of this provision.