ARBITRATION OR MEDIATION PART 2

Arbitration & Meditation

Written by Graham Perry

19 January 2021

THE  ARBITRATOR

The Arbitrator has authority and power. He/She listens to the parties. He makes a decision His decision is final subject to rights of appeal. His position in the Dispute Resolution process is quite different from that of the Mediator. The arbitrator may be a sole arbitrator or part of a panel of three or even five.

The Arbitrator is required to be objective, even handled, impartial, detached, without interest, fair-minded, neutral, non-discriminating open-minded and unbiased. The Arbitrator cannot have an agenda, favour a party, be partial or one-sided, be involved or be subjective.

These differences are known to arbitrators but not always applied, as such, during a hearing. Arbitrators can be provoked by the parties or the fellow arbitrators or be suffering from an ailment that induces short-temper or irritation. Arbitrators can be under pressure from other work or from domestic issues or – and this is quite common – from previous dealings with the arbitrators or the advocates. Arbitrators have to fight to be neutral – they have to have this uppermost in their minds all the time – the burning pressure is “to do it right”.

Into this mix, there is also the issue of unconscious bias. Things enter into the mind of the arbitrator that should not be there – a dislike of women professionals; a bias against people from other countries who might struggle with the English language; a bias in favour of people from a similar background or same social class. Even a bias based on dress, appearance and behaviour. An arbitrator needs to be aware of the possible negatives that might enter into his thought processes and deal with them so that, at any moment in time, in the course of the reference the arbitrator can remain balanced and fair in the exercise of the arbitral duties.

A good arbitrator is immensely worth the fee and a poor arbitrator is money wasted. So how to choose? – quite simply ask around; speak to people you trust; ask for recommendations; check them out. Word of mouth is by far the best way to judge. We all know people whose opinions we value so listen to them. Compile a shortlist and back your judgment.

Now the key point. You cannot say it but you want an arbitrator who is likely to be persuaded by your case and carry the arguments when the arbitrators meet to consider the issues in dispute. You might think it but you have to keep it to yourself. Such wrong words strike a blow at the heart of the arbitral process. You can only hope that your arguments will persuade your nominated arbitrator and the two other arbitrators if there is a tribunal of three. You have to know the limits and you have to apply the limits in order to safeguard the private dispute resolution process.

But an arbitrator can be vulnerable as well. He/she may be swayed by the name and reputation of the appointing lawyer and want to do well by him/her in the hope or expectation of future appointments. This kind of incorrect thinking, again, strikes at the heart of the arbitration process. The arbitrator cannot show favour to anyone and must be sturdily independent.  He/she must banish from their minds any thought of preference or return or monetary advantage. It might work once, maybe twice, but soon the name and reputation of the arbitrator will be damaged and the appointments will stop.

More on Arbitration and Mediation in future posts but let me finish with a question – it happened.

An arbitrator was appointed by a party and, in the course of the appointment process, the date of her birthday became known. Some months later when the arbitration was underway – and becoming a little “robust”, –  the arbitrator in question received a bottle of champagne, on her birthday, from the lawyers who had appointed her on their client’s behalf.

What should happen?

Let me know your thoughts – I will give my answer in my next post.

Good to have you onboard

‘Graham P’

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