GOOD MORNING FROM LONDON

WARNING ARBITRATORS – EPISODE 1

I recall an early arbitration. Five arbitrators – two of whom were forceful not to say domineering. And the forceful two were split – one for the appellant and one for the respondent. The remaining two arbitrators – I was one – were ill at ease (we discussed the situation confidentially). The Chair was affable and organised but out of his depth – unable to provide leadership or to deal with the antagonisms between the two Big Boys. I should add that it was a few years back and before women arbitrators had come to the fore.

Five arbitrators are distinguished by their character and personality.  Knowledgeable, experienced and capable of reaching an informed decision but with two of the five permitting personal tensions between them to upset the process and a Chair, too intimidated by their powerful presence, to intervene and bring order to the reference. 

It is wrong. It should not happen. It is contrary to the essential nature of the arbitral process and effective training should prevent such occurrence. And, in fairness, it happens rarely. But that it happens at all is wrong. It lets down the parties who have invested time and expense in the process and it fundamentally interferes with the final decision-making process.

The solution lies in the training of the arbitrators and, in particular, the training of the Chair. He or She should be primed to handle these matters with tact, discretion and, if required, with firmness. This has to be taught. The instinct to fairness is the starting point but the Chair has to be able to “sniff“ the existence of the problem.

A Chair watches, listens, and observes what is said and how it is said and whether any one or more of the arbitrators has an ‘agenda’ at work. Is there a spill over from past arbitrations when an advocate in an earlier case carries into the current case – where he/she is an arbitrator –  a simmering resentment from matters arising in the earlier case?

All arbitrators have egos. We all have egos. It is part of our make-up  but those egos need to be kept in check and a quiet word from the Chair – about the importance of S33 and the absolute need for fairness and impartial – should be sufficient to squash a potential Board conflict. I have often said that Mrs Thatcher, was renowned for being a good listener. She heard what was said to her and also made a mental note of what was not said. The silences and the omissions are as revealing as the words that are used.

Being a Chair is often taken for granted. Big mistake. The day you receive the appointment your brain slots into gear. You are on the ball and to be alert and focused all the time. You lead, you set out your role and function and you also  assess your fellow arbitrators. You focus on the issues in dispute between the parties but you also focus on your Tribunal. Are they doing their job? The answer is Not Always.

EPISODE 2 – TRIBUNAL WEAKNESSES