WARRING ARBITRATORS

EPISODE 8

15 JANUARY 2024

THE SUMMING UP

Episode 7 concluded as follows

“He speaks slowly and with a discernible breaking voice  “I want to make a full and unqualified apology. I have fallen short of the standards expected of a qualified arbitrator of this Institute. I apologise to the Chair and I apologise to my Lady colleague and I hope that my future conduct will be free of the disreputable behaviour that I have displayed in this case.”

FINAL EPISODE – WILL THE WORDS WORK?”

The short answer is “Yes”. Mr Heavyweight’s words do the trick. They are not sincere because he does not want to make “a full and unqualified apology”. But they achieve their objective. The Hearing continues. Mr Heavyweight is virtually free of embarrassment as the incident is contained within the Tribunal. His reputation in the trade is maintained. He can look forward to future appointments. He can proceed with his plans to celebrate a significant wedding anniversary on a Mediterranean cruise. His bank balance remains comfortable.

But the Chair is not happy. He does not believe Mr Heavyweight is sincere. He is “going through the motions”. But for the Chair he does not have to be convinced of Mr Heavyweight’s apparent contrition. The Chair has a different priority. He wants the arbitration to proceed. He wants to succeed in bringing the boat into harbour and fulfil his duty to deliver an  award and, as matters move forward, he is able to succeed in that objective. Problem solved. End of Story.

Well, not quite. The Institute of Mechanical Engineering does require Tribunal and Board of Appeal Chairs to submit a confidential report to the Arbitration Secretary about the Arbitration. Usually such reports tick the boxes as, in the main, problems rarely occur. But this arbitration has had its problems and the Chair has a decision to make. In his confidential report does he mention the problems that he has encountered with Mr Heavyweight?

The Chair has options. He can dismiss the problems as a mild squall and say nothing or he can decide he needs to refer to the problems and accept that there may be consequences for Mr Heavyweight. The Chair is not caught on the horns of a dilemma. He is clear about where his duty lies – it is to the integrity of the arbitral system and not to the protection of the errant Mr H. He drafts his report the evening that the arbitration ends. He leaves it for 24 hours and then takes a second look to see if there is anything he wants to change.

Mr Chair is not the angry or vindictive type. He has character and integrity and he considers that what he is reporting to the Arbitration Secretary is balanced and fair. It is critical of Mr Heavyweight but, thinks the Chair to himself, justifiably so. Mr H did overstep the mark. He did fall from grace and failed to behave in a way expected of arbitrators of the Institute. The Chair believes he could overlook a minor indiscretion and still fulfil his duty to the Institute. But not in this case – the behaviour of Mr H overstepped the mark. The Chair’s report has to go in – criticism included.

The Chair has just one reservation – he would prefer that Mr Heavyweight views the report. The Chair does not feel comfortable about being bound by confidentiality to the Institute but there is nothing he can do.

Let me know if you agree. All comments to me will be read by me and by me alone. They will not be for publication. It is an interesting point to consider. Should Mr Heavyweight see the Chair’s critical comments and have a right of response?

GRAHAM PERRY

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