WINGERS AT WAR – EPISODE 4

MEDIATION

Written by Graham Perry

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

19 June 2021

MEDIATION #115

The State of Play. To your surprise, the Wingers are at War. This is not a superficial difference of opinion but an agenda of contempt, if not hate + its origins are in a past incident. Winger A was an arbitrator and Winger B was an advocate. You are told that the arbitration – some years back – was tense + confrontational as the Advocate over-reached himself in the presentation + the arbitrator (one of five and not the Chair) raised the stakes in response. Egos were bruised; reputations damaged + recollections embellished with every re-telling.

You listen to the respective tales of woe. Always allow the moaners to have time to moan and then you go into action + your focus is the future, not the past. If the arbitration fails + you the Chair resign what then will be the fallout? Who will say what? And how often? And at what cost? Arbitration is full of gossip + asides + raised eyebrows + deep intakes of breath. So, no threats from you – none at all, not necessary – just take the parties through the fallout + the damage that will be done to their reputations as the story comes out. And it will come out – you will be required to explain to the parties what has gone wrong for a start.

Your task is to make the wingers realise that their agenda of mutual hate will be replaced by the parties’ agenda of party recrimination as they join forces to complain about the two wingers. And the word will soon get around the arbitral community + the damage to the wingers’ reputation will be considerable. In popular parlance – “it is a no-brainer”. And you, throughout, are low key, factual not emotional, focused not personal.

You will succeed. The wingers will realise from your words that too much is at stake. The arbitration resumes. Your standing is high + you will not encounter more trouble. Nothing further needs to be said during the hearing or post-hearing as the award is finalised. You cannot “dine out” on the episode or use it to your advantage but do you report it? – Yes to the administrator if it is an institutional arbitration. That is your professional duty but if it is ad hoc what then do you do? Thoughts? graham@grahamperry.eu

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