In recent days we have looked at examples of circumstances when arbitrators can become one-sided. First, you are not there to win the arbitration for the party who appointed you. Second, you are not there to impress the high profile lawyers who have appointed you. There is a third situation that crops up – where you are a winger and you become aware that the other winger has ceased to be balanced + neutral and, instead, has become partial + one-sided.
It is very disconcerting when this happens. Suddenly you feel that all three arbitrators are not on the same wavelength and not examining the issues in dispute between the parties with balance, detachment and objectivity. You try to remain reasonable and yet something stirs within you that all is not well. This is not how arbitrations are meant to be.
It is easier to be specific about what you do not do in reaction. You do not copy the winger + become as one-sided as he/she has become. You may be tempted to become partial solely to balance out matters as a reaction against the one-sidedness of the other winger. But this is not advisable because you become infected with the same virus. You have your standards – you know they are the right standards – you keep to them. You do not lower them.
So, you redouble your commitment to looking at the issues as you always do – without a trace of one-sidedness. If the other winger is acting the wrong way – you act the right way.
There is a second course of action which you take – after, and not during – the arbitration. You mention it to the Chair and you mention it to the appointing Institution but responsibly, confidentially + objectively. No idle words or casual comments. Act with integrity.
We all have duties – sometimes they are unpleasant. It reminds us that the single most dominating quality in an arbitrator is Character.
ONE FINAL COMMENT ON NEUTRALITY – 12 AUGUST 2021
AND THEN MEDIATION + FAMILY WILLS.