MEDIATION #260

The Arbitrator’s Fees topic has touched a chord. Arbitrators made comments. It is a topic which will return + return and the reason is not because it is about money but because it is about an unregulated system which permits too much individual discretion. People are people and as they say in Yorkshire – “there is nowt as queer as folk”. So, problems do arise and what emerges are uncertainties + inconsistencies.

Let’s consider the following; some arbitrators faced with a large claim or a large bundle of papers or a large number of cited cases feel entitled to charge an additional £50/£100 per hour when submitting their invoice. They unilaterally increase their hourly rate. But that has to be wrong + reflects badly on the approach of the arbitrator. The hourly rate should be set at the start in correspondence with the parties and remain in place and unchanged throughout the reference. If, genuinely and properly, the scale of the reference becomes clearer only months later, there is still no need to amend your hourly rate. It is what it is. Accept it.

Where there may be need for a later comment is if, under pressure, you have provided an estimate of your fees which is going to prove to be too small – then maybe raise the matter, but even then you would be better advised not to give any estimate of final fees until the scale of your likely time + commitment is known.  Quote your hourly rate + leave it at that

This leads to a second area of concern. The arbitrator has to record properly – and not improperly – the hours undertaken. Because the hourly rate is clear and in writing, there is no opportunity to the arbitrator to increase his charges by arbitrarily increasing the number of hours recorded on the time sheet. That is wrong – the hourly rate and the number of hours are what they are and not what you would like them to be.

There are more issues to address on this topic – see Episode 2 on 18 July 2022.