GOOD MORNING FROM LONDON

25 MARCH 2024

BEING AN ADVOCATE IN ARBITRATION

EPISODE 3

Episode 2 concluded;-

“Then there is the Tribunal. The wingers may well be party appointed but are they partial with a temptation to go in favour of their appointing party? It happens. We have all come across it – sometimes, not every time. Do you have ‘history’ with one of the three – or sometimes five – arbitrators? Arbitration is a small world. Memories are long and issues are recalled. Again, you need to be professional and correct and principled. You have a case to win but you also have a reputation to protect.”

Now the focus is on the Advocate’s preparation. In a phrase ‘Over-Prepare’. Be diligent, be thorough, over-read the documents and ensure you have a supply of felt pens for underlining. Also mark in the top right hand corner with a big X the documents to which you plan to refer – by the date of the Hearing these documents should be well-thumbed and well-lodged in your memory.

Each advocate has his/her own method of preparation. It is a case of what works best for you. Some advocates prepare well in advance – others focus with intensity on the 48-72 hours prior to the hearing. Each to their own. But whichever method you use – be thorough. The unacceptable position is to be under-prepared, uneasy with the detail and over-committing to memory. Read, re-read and read again. Refine your notes, re-arrange your order of presentation, cross refer the submissions to the documents and -most important of all – be prepared for the surprise argument.

You represent one party but do ensure you also sit back and view the case, the documents and the arguments from the other side’s perspective. What are their strengths and what are their weaknesses? There are two sides in an arbitration and the good advocate sees the issues from both sides. But there is a third party – the Tribunal. How will their minds be working? How will they assess the claimant and the defendant? Again – put yourself in their position. How will they review the issues and the parties and also, of course, the advocates?

Sometimes, it pays the advocate, during preparation, to close the documents, sit back and try to see the whole picture. This is the time to reflect/review/re-assess and guard against the inevitable one sidedness that can take over your preparation. You know that your case has strengths and weaknesses and this is the time for you to focus on your approach to your presentation. You are there to present your case and not just to attack the other side. You do need to address each of your opponent’s arguments but you also want to present your own case in the most positive and advantageous manner – and that means you need to know how to present your strengths and also address your weaknesses. You may be tempted to think that you can gloss over them but the Tribunal “have been there and done it”. They are experienced and it is better for you to have a strategy for commenting on your side’s weaknesses and in that way try to take control and place them in the best perspective.

Preparation is one thing and much of what has been said hitherto is self-evident. In the next episode the focus is on moral challenges that can confront an advocate. Again, it happens to every advocate at some time in their career. A challenge that discomforts us – compels the advocate to think about what is right and what is wrong.

GRAHAM PERRY