PRACTICE PROBLEMS

Written by Graham Perry

19 January 2021

ARBITRATION

You are chairing an arbitration tribunal of three arbitrators.

You become aware that the two winger arbitrators – both party-appointed – have a bad history. They have allowed their past tensions to enter into the conduct of the current dispute. It is affecting the proper resolution of the issues in dispute between the claimant and the respondent.

You are thinking over your options;-

  1. Send them both an email setting down the problem in the hope it will bring constructive solutions. DON’T – it is too much of a gamble. Whilst it might work, it is more likely to provoke the two wingers to justify their positions and make the divide even wider. Putting thoughts into writing runs risks. Tensions will increase. There will be more antagonism not less. Your position will become more difficult to maintain. The pressure increases on you.
  1. Speak to the two wingers on one call. The advantage is that it keeps everything on the same plane. All three of you know what is happening and there are no private conversations. The problem, as with 1 above, is that it is more likely to add to the tensions. The dispute becomes formalised. Whilst there is always the possibility that if you use the right words you may be able to soothe relations and bring the tribunal back to its focus, it is also the case – and you cannot control this – that the reaction of one or both of the wingers will be unconstructive. Tensions continue and your task is greater.
  1. The third solution is to speak to the wingers separately. Just ring one and then ring the other. No prior notice. How you handle the calls is important. Say enough to identify the problem and the consequences for the reference but not so much as to give either party a reason to “sound off”. Be careful not to make any criticisms of either winger. Do not focus on their past or the issues between them as that will merely provoke them both to re-state their own positions and the divide grows wider. Just be soft and gentle but say enough to encourage them to look only at the issues in dispute between the parties and to focus on the process.

Some arbitrators will say my suggested solution – speaking to the two in separate conversations – breaches the basic principles of arbitration law that there should be no private discussions between any two arbitrators. But that applies if you are discussing the issues in dispute between the parties and that is not what I am suggesting. You cannot do that. What you can do – and I have done it myself when I was chairing an appeal board of five arbitrators and two had a bad relationship – is to talk privately. You focus on the importance of the reference and the need for arbitrators to have a full discussion about the issues in dispute without interference or interruption.

Something along the lines – “We do not have to be in love with each other but we do have to be arbitrators together. We need to be fair and impartial and give full consideration to all the issues without upset or acrimony. We let down the cause of arbitration and also the parties if we allow personal feelings to get in the way of objective discussion of the issues”. More of the same. The softer the better. That is not cowardice on your part. It is being clever and finding the right way to get the problem resolved

OK – you are in my position – you have two wrangling arbitrators. What would you do?

The next post will be problems for the mediator.

Please use the website to express your views – for and against. That is the purpose of this website. It is set up to encourage an ongoing discussion of views and opinions on arbitration and mediation.

Best

‘Graham P’

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