ARBITRATION AND MEDIATION #192

Let’s move from the theory to the practice; from the generalities to the specifics. What actually happens when your sense of balance, fairness and impartiality is challenged by imbalance, unfairness even partiality. How do you react?

Let’s imagine a quite possible set of facts. You are a member of a five-person Board of Appeal and a party applies to the Board to exercise discretion to admit a late claim. It is David v Goliath. David is a small, inexperienced and vulnerable trading company with a large, and, seemingly, successful, claim against the substantial, experienced and well-known international trading company [Goliath]. But they are late in entering their appeal. They are out of time and the Board has to decide whether to exercise discretion and admit David’s late claim or close the door, refuse discretion and likely condemn the appellant to company liquidation.

Here, we are not looking at the arguments – for and against. The issue here is whether you retain the independence of thought and action and make a decision on the facts or whether you waiver and allow social and group pressure to play a part in your internal decision-making process. Can you stand up and make a considered independent decision with which you are comfortable, or, is your decision-making process affected by the presence of respected colleagues whose seniority and reputation begin to weigh in your mind?

Can you look colleagues in the eye and say No? Or do you wilt, go along with their point of view and say Yes? This is a matter for you and your individual decision-making process. Does the process remain supreme and enable you to maintain your integrity and independence, or do you waiver and make adjustments to your decision-making process? Only you know the answer to the question – only you know if you have allowed yourself to be compromised.
Tomorrow we will look at thoughts and issues that come into play as you wrestle with the decision that needs to be made.

TOMORROW – THE DECISION-MAKER AGONISES