WINGERS AT WAR – EPISODE 3

THE ARBITRATOR BECOMES A MEDIATOR

Written by Graham Perry

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

18 June 2021

MEDIATION #114

The Unexpected Has Happened. The two party-appointed arbitrators are at war. Can the arbitration continue? Probably not, but before you call a halt to proceedings + inform the parties you decide to make one last effort – a mediation.

You owe it to the parties to try. They have invested time + money in getting to this stage and, through no fault of their own, no award will result. They will be angry+upset but more of that later. The next step is mediation – you need to handle this stage with care. Why? Because you will be breaking a fundamental rule of arbitration – no one-to-one chats between any two arbitrators are permitted. All conversations have to take place when all three arbitrators are together. Anything less + you are acting unfairly.

Also, nothing to the parties. If you resolve matters + harmony returns, you proceed with the arbitration with no reference to any earlier winger strife. The issue for you as Chair is this – can you render a valid award of the Tribunal if the wingers are at war? – No. If you succeed in changing their conduct and believe they can engage constructively – then Yes. It is up to you.

So you announce to the arbitrators your course of action. The arbitration is threatened. You owe it to the parties to try to save the reference. You will, therefore, meet separately with both wingers + then meet together as three. First Winger A, second Winger B. It is agreed. Nothing is to be said to the Parties.

Note to Yourself – you are now a mediator, not an arbitrator. It is not a matter of which winger is right/wrong but whether you can achieve an outcome where the wingers are capable of acting as arbitrators. So, it is back to peeling off the leaves of the artichoke as you probe the dispute + get to the heart of the matter.

You are in listening mode – hearing, analysing, building up a picture, looking at solutions + mentioning the downside if the arbitration fails. You also need to think about what you might have to say to the parties + share that with the Winger A + B. Time to concentrate the minds of the Warring Wingers

EPISODE 4 19 JUNE 2021

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