THE CHAIRMAN ACTS – DECISIVELY

This is where we had reached at the end of episode 4.

“Back to the drawing board for the Chair. And a better solution takes shape”

The Chair has decided not to have a one-to-one conversation with the Heavyweight party-appointed arbitrator. It is his preferred option to address what he correctly regards as the inappropriate and unacceptable behaviour of Mr Heavyweight. The Chair is concerned that a private conversation between two members of a Tribunal to the exclusion of the third arbitrator – in this case the Lady Arbitrator – is not good practice. And it could come back to haunt the Chair if Mr Heavyweight mentions this to the Institute as he might do because he is at odds with the Chair. A Chair must always act properly. Short cuts may be appealing but they are best avoided.

So what is the “better solution”.

The Chair calls a meeting of the Tribunal – clearly a “behind closed-doors” event. The Chair has made notes in preparation and decides to read his notes and give more formality to his important initiative. He speaks;

“I consider a problem has arisen in this arbitration which requires me to act. The problem is the conduct of Mr Heavyweight. He is behaving in a manner that I regard as inappropriate. First, he has disregarded my request to save questions to the advocates until the advocates have concluded their respective opening submission. Second, he has adopted body language in the Hearing which is disruptive and inappropriate and, thirdly, his behaviour in our own private sessions has been confrontational and interfered with the proper consideration of the issues before the Tribunal. I have raised this matter with Mr Heavyweight in the presence of the Lady Arbitrator and requested him to review his conduct but unfortunately the inappropriate behaviour has continued. I consider that this state of affairs prevents the Tribunal from discharging its S 33 duties to be fair and impartial and I have to inform the Tribunal that it is my intention to write to the Institute informing them that the Tribunal will stand down from any further involvement in this reference.”.

There was silence as the two arbitrators took in the meaning and significance of the Chair’s words. Both winger arbitrators were quiet – reluctant to speak but the Chair knew it was not for him to break the ice. The initiative lay with Mr Heavyweight or The Lady. The Lady was composed and controlled and determinedly silent. The pressure was on Mr Heavyweight.

How would he respond? Would he continue with his confrontational approach or would he be more accommodating? Thoughts raced through his head. The Institute would have to write to the parties and their instructing solicitors and, thought Mr Heavyweight, this would reflect adversely on him. Aside from the possible damage to his reputation there was also the matter of his fee. Could he reasonably expect to be paid for the time spent in view of the Chairs words, and there was also the fee lost because the Tribunal would become ex-officio. And there was the danger that this state of affairs might become a talking point in the world of arbitration. These things do slip out via the parties or their solicitors or the appointing institute.

But Mr Heavyweight, thought that the Chair was over-reacting – after all, he thought there are occasions when an arbitration can become robust. Maybe, Mr Heavyweight mused to himself, “I should challenge the Chair. I may have been a little heated but isn’t that part of the “rough and tumble” of Dispute Resolution? He needed time to think it through and the Chair and the Lady agreed to give him time overnight.

An unsettled evening ahead for Mr Heavyweight as he reflected on next steps.

EPISODE 6 – MR HEAVYWEIGHT REFLECTS AND RESPONDS