Banter Between Arbitrator And Counsel Unleashes New Proceedings

A New Jersey court’s decision in Asphalt Paving Systems, Inc. v. Associated Asphalt Partners, LLC provides a cautionary tale for those seeking to inject an element of levity into what is supposed to be a formal proceeding.

Plaintiff later alleged that as the arbitration ended, the arbitrator asked the parties and their counsel, “What would be the result if I determined the agreement is too ambiguous to enforce?” Plaintiff also alleged that, in response, defendants’ counsel replied, “I will tell you what happens. You get sued for malpractice.”

The arbitrator subsequently ruled in favor of defendant, and plaintiff claimed this exchange constituted a threat against the arbitrator, causing him to rule as he did.

Thus began the litigation after the arbitration, involving trial level proceedings and multiple appellate rulings. Ultimately, the court ruled that the exchange was in the nature of joking banter and was not a threat, thereby undermining plaintiff’s claim that the award was procured undue means. It also did not help the plaintiff’s cause that it did not raise the claim at the time of the exchange but waited for the arbitration award to issue.

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