MEDIATION #252

You are party Arbitrator A for Claimants. The other winger is Arbitrator B + well known in arbitration circles. The Chair is Arbitrator C – methodical, controlled with a tendency to be low key. By comparison B is expansive, jocular + knowledgeable.

The arbitration focuses on a quality/condition issue. There are arguments on both sides + the parties, both instructed by lawyers, have submitted expansive submissions with case law. There is much to do but nothing that is particularly unusual. There is reading to do + issues to discuss.

There are interlocutories + skill is needed to ensure the wording of the Tribunal’s directions strike the right note so exchanges take place. But this is a documents only reference so no hearing.

You notice that B is not his usual self. Quiet rather than ebullient + lagging behind in expressing a view on the issues. You wonder to yourself whether something is up + you mention the matter to the Chair who speaks to B in low key, general terms to see if there is a problem. The Chair is assured that all is well and the Tribunal proceeds in the usual way.

There is a considerable amount of case law + being a diligent arbitrator you do your homework, read the cases + make notes. The Chair summarises the legal argument + asks for comments. You feel the balance of argument is with Claimants and say so – expecting a vigorous response from B but, again, he is low key + confines himself to just a few lines. The arbitration does not suffer significantly because the Chair takes a different view from you and there is a thorough and proper discussion of the issues notwithstanding B’s contribution is quite modest.

You remain puzzled. This is not normal. But you do not venture further because the Chair has raised the matter with B and offered B the opportunity to disclose any sensitive issues – health possibly.

And then the issue of fees come into play.

EPISODE 2. 1 JULY 2022. LIGHT THE BLUE TOUCHPAPER