ARBITRATORS ANTAGONISMS

GOOD MORNING FROM LONDON

The arbitration has commenced. Both parties have appointed their arbitrator and the Institution of Mechanical Engineering has appointed a Chair. Things are on the move. The Chair has done his homework and checked the arbitration clause in the contract. So far so good with just a slight note of apprehension on the part of the Chair – he knows the two party appointed arbitrators and he is on edge. He has good reason to be.

One of the wingers is an Arbitral Heavyweight with a forceful style of expression. He knows his Engineering and he has had a number of appointments though, so far as the Chair is aware, he has never, himself, been a Chair. Always a Winger but Never a Chair. Maybe he does not want to be a Chair or maybe he has simply not been appointed – the Chair muses to himself.

The other winger is a rising star. She is an Engineer herself and with the requisite qualifications to be an arbitrator. The Chair has been on another Tribunal with her and recalls her as a methodical and well-prepared arbitrator if rather wordy when making a point.

Our Chair is open-minded but senses that he might just be tested during the hearings or, separately, during the Tribunal discussions. The Chair is right and there are problems. The Heavyweight does, despite the previously stated preference of the Chair, interrupt both advocates with questions. The Chair has advised the two Wingers that he will provide an opportunity to both Wingers to ask questions making it clear he does not want the advocates to be interrupted whilst making their presentations.

The second problem arises in the retiring room when the Heavyweight, with body language in abundance, makes a blunt dismissive comment about the quality of one of the advocates. It is quite cutting. And, thirdly, the Heavyweight actually uses throwaway bad language about some of the Claimant’s arguments.

The Lady arbitrator immediately takes issue with the Heavyweight . She makes valid points but with unnecessary length prompting some mocking hand language from the Heavyweight.

Conflict has come a little earlier than the Chair had expected and he feels compelled to make an observation about both Mr Heavyweight and the Lady. The Chair feels that his words will work and that harmony will be restored.

But the afternoon session throws up more problems. The Lady Arbitrator asks three questions but still at some length. The Heavyweight’s body language and occasional mocking sigh makes clear his objection to the Lady’s questions. Now the Chair is trying hard not to get tetchy himself with the discord. It is something he can only address in the Retiring Room. He knows he has a problem and soonest he enters the Room he addresses the Heavyweight and the Lady. He picks his words with care and speaks at the right speed and with the appropriate emphasis.

[This part of the Chair’s responsibility – to speak with appropriate emphasis, with the right words and at the correct speed – can be under-appreciated by arbitrators. Sometimes the Chair is feeling awkward, or tends to rush his/her words or gets tongue tied.]

The Chair concludes but back in the Hearing room problems persist. Now what should the Chair do? What are his options?  How far can he go?

Time for a Christmas Break.

My best wishes for the festive interlude.

GRAHAM PERRY