I respectfully dissent from the majority's holding in this case. Tripartite arbitration is a unique, anomalous and somewhat murky world. As has been set forth in many cases, non-neutral (or party-appointed) arbitrators are expected to advocate on behalf of the party who appointed them and to do their best to present the facts to the neutral arbitrator in the light most favorable to that party. See, e.g., Local 472, International Brotherhoodof Police Officers v. Town of East Greenwich, 635 A.2d 269 (R.I. 1993); Aetna Casualty Surety Co. v. Grabbert, 590 A.2d 88 (R.I. 1991). Undoubtedly, that happened here with respect toboth sides in this arbitration. In the hearing that occurred in the Superior Court, McGinity's party-appointed arbitrator testified that he had used documents prepared by McGinity's counsel *Page 510 detailing the chronology of events. At oral argument before this Court, counsel for McGinity conceded that he was in regular contact with his party-appointed arbitrator over the course of the arbitration proceedings, and that they consulted on strategy to advance McGinity's cause.
Despite that, I can accept the majority's rationale that there was a special relationship between Pawtucket Mutual and its non-neutral arbitrator by virtue of the fact that the arbitrator, an attorney, had represented the company on other matters, and that this relationship should have been disclosed to the neutral arbitrator.4 Parenthetically, it appears that McGinity's party-appointed arbitrator, also a member of the bar, knew of the relationship between Pawtucket Mutual and its party-appointed arbitrator. In the Superior Court, he testified that even though he was unaware of any ongoing representation of Pawtucket Mutual by its party-appointed arbitrator, he thought that "Pawtucket Mutual has been a client of [that party-appointed arbitrator] for a long time. I know that he * * * represents Pawtucket Mutual as an entity and does work for them as a party arbitrator. I think he has a pretty good relationship with that entity."
Where I depart from the majority's reasoning, however, is its holding that a failure to disclose the attorney-client relationship warrants modification to the second prong of theGrabbert analysis. To me, the situation presented in this case is not nearly as fraught with difficulties as that in Grabbert, in which a non-neutral arbitrator had a direct financial interest in the outcome of the case. While it is true that Grabbert was a unanimous award and here the panel was divided (indeed there was a dissenting opinion with a strikingly higher damage award), that should not be the end of our analysis with respect to the principles set forth in Grabbert.
According to the majority, the failure to disclose the attorney-client relationship in this case "should give rise to a rebuttable presumption that Grabbert's causal nexus requirement has been met. We perceive nothing in the record that convinces us that said presumption was rebutted in this case." I appreciate and respect the difficulties encountered by the majority as this Court again struggles with the slippery issue of what constitutes evident partiality in a process that has, by agreement, inherently partial aspects. As the majority recognizes, a party-appointed arbitrator is not a judge, and he or she is not held to the same strict standard as the neutral arbitrator. But even a party-appointed arbitrator has an obligation to "`conduct the proceedings in an evenhanded manner and treat all parties with equality and fairness at all stages of the proceedings.'"Grabbert, 590 A.2d at 94 (quoting Barcon Associates, Inc. v.Tri-County Asphalt Corp., 86 N.J. 179, 430 A.2d 214, 220 (1981)). For sure, this standard should apply to party-appointed and neutral arbitrators alike.
However, even if one accepts the majority's deviation from the principles set forth in Grabbert by its holding that the relationship between Pawtucket Mutual and its party-appointed arbitrator gave rise to a rebuttable presumption of causality supporting a conclusion of evident partiality, I *Page 511 believe that any such presumption has been overcome based on the record in this case. To me, the critical testimony in the hearing below was that of Dennis McCarten, the neutral arbitrator. McCarten, an experienced civil litigator who is well versed in the arbitration process, testified that he was well aware that the non-neutral arbitrators have an "ax to grind." He further said that although he did not know of the relationship between Pawtucket Mutual and its party-appointed arbitrator, he was not surprised by it. Most significantly, however, McCarten testified that "without any doubt that I had quite honestly made up my mind consistently with the decision we rendered before I went into the meeting," and that Pawtucket Mutual's party-appointed arbitrator "had no influence in my thinking about this case." That testimony was uncontradicted and it was not shaken on cross-examination.
Therefore, even if I accept the majority's rationale of a rebuttable presumption of evident partiality because of the relationship between Pawtucket Mutual and its party-appointed arbitrator, the presumption has been overcome, and McGinity's challenge to the arbitration award should fail because the second prong of the Grabbert test has not been surmounted. For these reasons, I dissent from the majority's holding and would reverse the judgment of the Superior Court.