THE ARBITRATOR BECOMES A MEDIATOR – EPISODE 2

MEDIATOR

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

17 June 2021

MEDIATION #113

Civil War has broken out. Friction between the two Wingers. It is more than mere tension. Is it controllable? And if it isn’t – then what?
 
This does not happen very often. Most arbitrators are civil + accommodating but the unexpected can happen. The differences fester – nourished by a jibe here + an email there. If unaddressed, it threatens the arbitration. You cannot have winger arbitrators sniping at each other at a hearing – however, muted it might, at first, appear. The Tribunal cannot perform its task. It cannot observe its S33 Duty to be fair + impartial + to deliver a valid award if the Tribunal is in strife. You may have to consider your position – it is that important.
 
First things first – what do you do as Chair to address the problem? This has not come up in training because the assumption is that constructive good relations exist among the Tribunal. Division + tension within the Tribunal was not addressed as a topic when you prepared for your arbitration qualification exams quite a few years back – in the mists of time. You remember something about “embedding differences” but not aggression + insult.
 
Clearly, you need to speak to the arbitrators – initially collectively + thereafter individually. The collective bit is fine as the Tribunal is in open session without the parties but the individual bit is problematical because it means you + one winger talking without the other winger present. You can handle that by stating in an open session that the private session will avoid any conversation about the issues in the arbitration – only focusing on winger relationships.
 
Tomorrow we will look at the position after you have spoken separately with the two wingers and learned more about the source of the antagonism and assessed its impact on the arbitration going forward.

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