GOOD MORNING FROM LONDON

MEDIATION  – #323

EPISODE #1 – ADVOCATES AT WAR

They happen – infrequently, not repeatedly, and when they happen they become much discussed. Usually arbitrations are carried out without turbulence or even incident. They are, in the main, plain sailing. But upsets occur. Words are said, tempers rise, feelings are aroused and confrontations occur.

“Can you believe it…” What do you think…” “And then he said…” “And you should have heard her response…” “Well I never…” And more of the same. Confrontations are logged in time and repeated down the years.

It is often said that repeated accounts tend to change the narrative, that the story line becomes exaggerated with every re-telling. Experience suggests otherwise and the actual words become crystallised, remembered, retold and form the narrative for Hearing Incidents at Training Days.

And you have all been there. You have all witnessed moments of feeling and emotion when advocates lose their cool and exchange barbed insults. Those of mature years will speedily recall the days when two advocates in grain trade arbitrations in particular would trade regular acrimonious and insulting words. They could not help themselves. Both were skilled, experienced and capable advocates and outside the hearing room they were civil to each other. In fact they respected each other and recognised each other’s talents but they were not best mates and arbitrators would ruminate prior to the commencement of the hearing as to how many minutes would elapse before the verbal fisticuffs would break out.

I am talking history and both giants of dispute resolution have passed away but they are remembered with respect and affection notwithstanding the grandstand verbal exchanges. If you were a party, your chances of winning were always improved if you had one or the other as your advocate. I am talking, of course, about the late Tony Scott and the late Ron Short.

Dispute Resolution has changed since the days when their set piece confrontations were the norm. There is a reason and it lies in the improved and focused training of arbitrators and, in particular, of the Chair. Chairmen and Chairwomen are not now so naïve or timid or cowed by the sometimes superior ways of the advocates.

And Advocates, used to appearing in the High Court, the Court of Appeal or, even, the Supreme Court can fall into the error of “speaking down” to Arbitrators. A lack of respect infiltrates their preparation of their brief and reflects itself in the presentation of their case. A footballer, used to the Big League, can struggle when playing a Cup match away to a team from a lowly division. It is the same with Advocates. They have their ego, their heightened sense of self-worth and moving from the Court of Appeal one day to the less prestigious hearing room of Commodity Arbitration the next can unconsciously infect their mind set and lead to a haughty arrogance that quickly becomes apparent to the Board of Appeal.

And Boards do not like it. Boards have their ego as well. They have striven over the years to reach pinnacle positions and, quite rightly, don’t like advocates who talk down to them.

EPISODE 2. THE CHAIR’S VANTAGE POINT.