By Leslie King O’Neal
Ex Parte Emails Inappropriate & Unethical
It’s well established that arbitrators should not have ex parte communications with parties to the proceedings. Such communications raise issues about the arbitrator’s impartiality and neutrality. Arbitrators should avoid oral or written ex parte communications with parties or counsel to prevent motions to vacate the award. However, while improper and unethical, arbitrators’ ex parte communications alone generally aren’t sufficient grounds for vacatur unless the moving party can show the communications prejudiced its rights[i].
GA Supreme Ct. Upholds Arbitration Award Despite Ex Parte Emails
In Docs of CT LLC v. Biotek Services LLC[ii] the GA Supreme Court upheld an arbitration award, finding the party moving to vacate failed to show that the arbitrator’s ex parte communications with opposing counsel affected or influenced the arbitration’s outcome. Consequently, the court found no grounds to vacate the award.
Unrepresented Party & Default on Liability
The Docs of CT LLC case had some factual quirks. An arbitrator found Docs of CT (“Docs”) in default on liability for unexplained reasons. Further, because Docs failed to provide required discovery, the arbitrator ruled it would not be allowed to introduce evidence at the damages hearing. Shortly after this, Docs’ counsel withdrew and no new counsel appeared. Docs never provided the discovery. After counsel withdrew, the arbitrator told Docs’ corporate representative he would not be allowed to present evidence at the hearing because he wasn’t an attorney and Docs was in default. The representative attended the hearing but didn’t participate. The arbitrator awarded Biotek over $1.6 million in damages, interest, costs and attorney’s fees.
Motion to Vacate
Docs moved to vacate the award in Georgia superior court asserting, among other things, that because of the ex parte emails, the arbitrator exhibited partiality and engaged in misconduct. Docs submitted copies of emails between the arbitrator and Biotek’s attorneys sent after Docs’ counsel withdrew, noting the applicable arbitration rules prohibited ex parte communications between parties and the arbitrator.
Arbitrator’s Ex Parte Emails Shouldn’t Have Happened
The emails were sent before and after the evidentiary hearing, seeking exhibits and other information about damages calculations. However, the arbitrator also told Biotek’s counsel “You did a good job,” and asked about the court where Biotek filed to enforce the award. The trial court denied the motion to vacate and affirmed the arbitration award. The GA Court of Appeals affirmed, stating the emails should not have happened, but Biotek didn’t show its rights were prejudiced.
GA Supreme Court Reviews “Prejudice” Standard
The GA Supreme Court granted review to consider how the standards for vacating an arbitration award in the GA Arbitration Act, OCGA §9-9-13(b), apply to ex parte communications.[iii] Citing numerous cases applying the FAA as “strong evidence” that a party’s rights are not “prejudiced” unless the arbitrator’s conduct affected or influenced the arbitration outcome, the GA Supreme Court held prejudice isn’t presumed when there is improper arbitrator conduct. Docs failed to show prejudice merely by pointing to the ex parte communications without explaining how they affected or influenced the hearing outcome.[iv] Thus, the court affirmed the arbitration award.
Watch What You Say–Ex Parte Communications Can Be Oral
Oral ex parte communications can also create issues regarding arbitrator impartiality and can lead to vacating an award. In Grabowski v. Kaiser Foundation Health Plan, Inc.[v] an arbitrator’s comments criticizing the self-represented plaintiff made to defense counsel during a break (which the plaintiff’s mother recorded on her cell phone) resulted in the award being vacated. Because the arbitrator failed to disclose the communication as required by applicable statutory and ethical standards, the appellate court vacated the award without even a showing of prejudice.[vi]
Takeaways
- Arbitrators should avoid ex parte communications with parties or counsel. If such communication takes place, the arbitrator should disclose it immediately.
- Parties seeking to vacate an arbitration award because of ex parte communications should be prepared to offer evidence showing how the communication affected the arbitration hearing outcome. Note the examples listed in footnote iv below
[i] See Robert M. Hall, Ex Parte Communications in Arbitrations and Their Consequences, (2016)(debrahalljd.wordpress.com); www.https://robertmhall.com
[ii] (Case No: S24G0435, May 28, 2025) https://caselaw.findlaw.com/court/ga-supreme-court/117312278.html
[iii] The opinion does not discuss why the Georgia Arbitration Code standard rather than the Federal Arbitration Act standard is used. Perhaps this contract did not involve interstate commerce. The Docs decision notes that the Georgia statute is similar to the FAA and cites federal cases on the prejudice issue. See post: “FAA or State Arbitration Law—Which Applies and When?” https://theconstructionadrtoolbox.com/2025/05/which-applies-faa-or-state-arbitration-law/
[iv] For example, it didn’t show what evidence it would have presented to support a lower damage award; what objections it could have raised to the exhibits or damages calculations that would have altered the final result; what arguments it would have made to rebut Biotek’s damages calculations or anything else showing that, but for the ex parte communications, the outcome would have been different.
[v] 64 Cal. App. 5th 67 (2021)
[vi] Carole J. Buckner, SDCBA BLAWG 401, “Court Vacates Arbitration Award Due to Ex Parte Communication Between Arbitrator and Defense Counsel,” https://www.sdcba.org/?pg=blawg401