My post – #460 – prompted responses from readers. Some argued that the issue of an arbitrator/mediator’s character was a given. It was assumed that dispute resolvers knew about character when they commenced their training and that being the case it was not a matter for further consideration. “We know about fair play and objectivity so there is an end to it”.
Others commented on bias and the distinction between conscious and unconscious bias and posed questions designed to distinguish quite innocent bias from bias that reveals a prejudice that undermines the S33 impartiality requirement. The issue is whether arbitrators (and mediators) should shy away from discussing the issue because it is “awkward” or “personal” or “sensitive”. This is understandable but is it correct?
Let’s look at a topic drawn at random – a colleague may, in the retiring room in the presence of fellow arbitrators only, make a quite indiscreet not to say unpleasant comment about boat people. It suggests a racial bias. Now one of the parties in the arbitration is a Ghanaian Trader. Does it occur to any of the fellow arbitrators to question the suitability of the indiscreet arbitrator to continue as a member of the Tribunal? If you do raise the matter you will be creating an awkwardness but if you do not raise the matter are you acquiescing in a possible prejudice that runs counter to the fair and impartial requirement? Are you worried that if you do raise the matter it will count against you when it comes to future appointments and therefore decide to stay silent.
This is an issue for the Arbitration bodies because these are issues of principle and the Trainers need to provide guidance and leadership. A start can be made by making the focus of one of the Training sessions the words ‘Fair and Impartial’. There is no witch-hunt. The purpose is to desensitise the issue by making it a quite proper subject for discussion, assessment and training. There are arbitrators who do not realise that bias and prejudice are part of the human make up of all decision makers. and the Training Bodies owe it to the Users of Arbitration to ensure the decision makers are genuinely independent, fair, balanced and impartial. Sweep it under the carpet and problems will arise.