The conference was organised by The Chartered Institute of Arbitrators. We English attended in hordes. We stood out. The French, the Germans, the Swiss told us about "co-operation to produce a standard for best practice in dispute resolution in the EU". The English (in fluent English) immediately told Europe how to do it properly.
I winced. I do want to hear all those bright ideas. I love those conferences. I warm to notions of managing disputes and being "just", whether as arbitrator, judge or mediator. I want to hear ideas on cost savings, speed, effectiveness. Yet I winced. Why? Because I could see it coming that someone would want to turn these ideas into rules. These confounded rules would be like traffic lights at a road junction. Prescriptive. Do this, do that – no, not like that, like this. Walk. Don't walk. Stop!
I don't know of a dispute in commerce that fits precisely into management rigmarole. I don't want 10 commandments of best practice in arbitration, or mediation, or tribunals; I want to put my client's dispute into the hands of a dispute decider who has imagination, is independent and can think up efficient ways of getting to a fair decision. I go to these conferences to listen for ideas. I don't mind being given a framework for fairness, but stop telling arbitrators and the like what to do.
Mind you, that view is not shared by some important people. Look what happened to the poor old French when they told George W Bush about the French verb "to go". And who can blame the suspicion in the minds of those in the developing world, when the arbitration panel in a commercial dispute is made up of white, middle-class males from Europe, telling everyone how to do the arbitration?
For heaven’s sake don’t produce a set of commandments for best practice and impose them on a dispute decider – just free up the tribunal to use its loaf
For heaven's sake don't produce a set of commandments for best practice and impose them on a dispute decider or mediator. Instead, let's just listen to ideas and free up the tribunal to use its loaf. And while I am on my high horse, stop choosing people to become arbitrators who are rule-bound. Choose those who are willing to tell people and rule-makers to go where the French wanted Bush to go.
The mediators were at the conference. They are like the Salvation Army. I love them. I don't love mediation; I only like it. It works, but only sometimes. Truth is, I feel a bit miffed by the English courts shoving the idea down my clients' throats; real Europeans also find that odd. These mediations are not cheap. Preparation can run into tens of thousands of euros. Leave us alone.
Mediation works because litigation is still a place of last resort. Yet the courts have sharpened up their act. Still too expensive, still disliked. The reason at base is that the courts will never change the fact that the commercial man, the man owning the dispute, becomes a mere onlooker to the process. He loses control. The trick, in arbitration, is that the commercial man "feels" part of the process. But arbitrations are places of last resort, too, because those who say they know best fetter the up-and-coming arbitrators who want to break out of the old mode. Next time we have an international chinwag, do come. Don't come to be bullied, just come for an inkling about doing it differently.
Tony Bingham is a barrister specialising in construction. You can email him on firstname.lastname@example.org.