THE UNDERPERFORMING ARBITRATOR – EPISODE 7

Written by Graham Perry

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

16 June 2022

ARBITRATION #242

In the last six episodes I have been focusing on arbitrators’ standards of performance. They are so important to the discharge of your duties. They distinguish you as an alert, involved + aware arbitrator from those who are going through the motions. We do come across people in the latter category. It does happen. How to handle them?

A difficult and sensitive question. Actually the answer lies less with them and their performance and more with you and your performance. Try to avoid being side-tracked into a dispute with the under-performing party – difficult though that maybe. Bear in mind that your S33 duty is the priority. You have to do your job + that is your constant number one goal – be sure you are fair + impartial, + avoid unnecessary delay and expense. You know the score. You are familiar with the wording so you set about the submissions + documents with an open + enquiring mind always Infused with fairness + balance

The chap/chapesse comes up short + fails to reach the necessary standards. He/She has not grasped the issues; has not absorbed the arguments + is failing to contribute in any meaningful way to the Tribunal’s discussions. Your reaction is not to become riled or antagonistic or get into a spat. He/She is not the target. He/She is an obstacle to the proper functioning of the Tribunal + is undermining the work of the Tribunal but go around the failing arbitrator + minimise their impact on the arbitration.

After the arbitration you can consider what action, if any, you want to take. Hopefully the Chair will assume that responsibility. Every arbitral body will have formal + informal procedures to address this very issue. There is a need for sensitivity + confidentiality. This is not gossip. An under-performing arbitrator does damage to the process of arbitration.

FINAL EPISODE 17 JUNE

NEW MEDIATION ON A SECOND HOMES DISPUTE 20 JUNE 2022.

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