A trial before a judge or arbitrator is one thing; negotiations facilitated by a mediator is a horse of a different colour. So what would happen if we crossed them?
The lecture started ever so well.
Arthur Marriott QC told his audience he would be controversial, even unpopular. “I want to provoke debate,” he said. It got even better when he rejected the first question an arbitrator invariably asks themselves on being appointed: “What do I need to do to decide this case?” It’s the question I ask. He wants a different first question: “What do I need to do to settle this case?” Can you see the difference? I confess that some years ago I gave the elbow to the idea that I, as arbitrator, should strive, cajole, and coax. Now I stick to that first question, the one Mr Marriott doesn’t like. I focus on getting the arguments on the table, delivered, sorted. Then I decide between them and try to be quick about it.
So I liked Mr Marriott’s starting point because I am against him. Persuade me. He got close.
Our system for dispute sorter-outering is well described as two distinct sides of the same coin. On one side is the alternative dispute resolution mediator route. On the other is the legally binding formal process; the court or arbitrator or adjudicator “adjudicates” the case advanced by A and B. Mr Marriott wants the referee arbitrator to do both … to help A and B to reach a fair and effective settlement. Yes, the arbitrator deliberately mixes up the mediation and arbitration systems. They even go as far as to express a view as to how they might well decide the case if it gets that far. My ears pricked up. There’s something in all this. Weaved in here is a tricky bit: keeping confidential something disclosed to the arbitrator by A out of earshot of B. It is even trickier when the arbitrator reaches the adjudicatory stage without making known all that they have heard in all the dialogue. In traditional arbitration it is a mortal sin to listen to one side in the absence of the other; and it is the firing squad for an arbitrator who decides a case without each side hearing the other. So Mr Marriott is by now making me interested.
So what is he fretting about? Well, dispute deciding is expensive, and harrowing. That says Mr Marriott is not just. Change the emphasis he says. Let the target, even for binding judicial tribunals, be to sort a way to settle.
In arbitration he comes up with a specimen procedure. There are eight steps. First, the arbitrator is appointed. Second, the claimant files a statement of claim and sets out the stage reached in any settlement negotiations, and if they wish, they can set out privately for the arbitrator a settlement proposal. Third, the respondent replies in much the same way. Fourth, there can be a provision, where appropriate, for a reply pleading.
The first question an arbitrator asks is: What do I need to know to decide this case? For Arthur Marriott QC it ought to be ‘to settle this case’
Step five is when the arbitrator considers with the parties individually and together what settlement procedure should be followed and whether, as they may well order, the adjudicatory procedures on one or more issues should continue, and they may give appropriate directions with respect to the production of evidence.
In step six, the settlement process begins, whether by mediation, minitrial, or early neutral evaluation. If this does not succeed then we get to step seven: the arbitrator defines, together with the parties, the issues they need to decide. In doing that, they can see the parties individually and indicate privately which arguments or points they consider ought not to be proceeded with in the light of what may have been revealed by the settlement process.
Finally, step eight: the arbitrator proceeds to a decision following procedures within time limits and cost caps as allowed in the Arbitration Act.
Interesting? Yes, but. Not long age a dispute adjudicator asked the parties if he could help them to settle. They said yes. He mediated. It didn’t settle. So he carried on with the binding dispute process. The loser didn’t want to play after it saw the binding award. The winner came to court to enforce the award, But the judge paused. He said it was necessary to have a trial to test the understanding of the loser when it apparently agreed to part company with the due process of the English legal system. That was right. Right because something different was being tried and coin tossers have to be ready to mix it with the English legal system.
Tony Bingham is a barrister and arbitrator specialising in construction.