MEDIATION #112

I return to a theme briefly mentioned some months back – the arbitrator who has to mediate between two fellow arbitrators.

The arbitration is up + running. The Tribunal of three arbitrators – you in the Chair as Mr X, and two wingers – Ms Y + Mr Z – is in place + issuing directions to the parties. The parties are meeting their deadlines for filing submissions. There is to be an oral hearing. There are differences between the parties’ lawyers but no upsets. They are experienced + co-operating.

You have held a pre-hearing management meeting with an agenda of issues; hearing location; hearing date; witnesses; interpreters, transcript of proceedings; hours of hearing; length of time for opening submissions; days set aside for the hearing; agreed list of issues.

It goes well as regards the parties but one problem arises. You have been chosen as Chair by the two party appointed arbitrators – Ms Y/Mr Z. You have heard of their names but have never met either or had any dealings with them. But you are facing problems. There is tension between them. They do not get on.

You have sensed it in the email exchanges but it becomes apparent in Tribunal only meetings at the management hearing. The body language gives you a clue with a lot of arm/shoulder movement revealing “huffy/puffy” moments. They cut across each other when they are talking + even interrupt you as you are summarising the agenda.

You are on notice. You have a problem. What To Do? How To Handle? If this is the situation in private meetings of the Tribunal what will happen when the Hearing commences. Suddenly you, the Arbitrator, has had to become a Mediator. Can you handle it? Can you caucas? What is your next step?

Episode 2 –  17 June 2021