TO DECIDE OR NOT TO DECIDE

TO DECIDE OR NOT TO DECIDE

Written by Graham Perry

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

6 April 2021

COMMENT OF THE DAY

MEDIATION

The parties have asked you to decide the one remaining issue in dispute between the parties. Do you agree to their request?

THE NO ARGUMENT
You are the mediator – not the arbitrator. You cannot decide on an issue. Your task is to bring the parties together – can you do that if you decide in favour of one or the other. Would the agreement to decide to be simple or complicated? + what about your liability – how do you protect yourself against later claims by the losing party? + do you have the knowledge + necessary ability to decide the outstanding point? All points to NO.

THE YES ARGUMENT
You can finalise the dispute. The parties have asked for your help – can you reasonably refuse? If you lack specific technical knowledge you can consult + obtain advice + pass it to the parties for comment + payment for the advice. You would be bringing the dispute to a successful conclusion provided you made clear that the parties would abide by your decision. All points to YES

Arguments on both sides. My answer on 8 April but welcome your comments

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