For example, there's the adjudicator who obtains legal or technical advice and, bingo, makes his decision. Oh dear, that won't do. The advice has to be sent to the arguing folk for praise, or the reverse, to be heaped on it.
Then there is the dispute decider who has his own bright idea, and decides in the debating chamber located between his left and right ears that the sun comes up in the North. I have read twaddle in decisions and wondered why it wasn't muttered aloud so that it could be put right.
How safe is it to come up with one's own bright ideas anyway? The adjudication Act says the dispute decider "may take the initiative in ascertaining the facts and the law", but the initiative can't go so far as to dream up clever questions not thought of by the party that is being helped out by them. I am one of those adjudicators who asks smartypants questions – and, do you know, I am beginning to have second thoughts. I insist on telling the parties about my own bright ideas to give them a chance to comment, and I am having second thoughts about saying anything at all, even thinking anything at all. Does that sound daft?
Well, it's not so daft. In other parts of the world you will find the forensic tradition is that dispute deciders sit mute, listening to the witnesses and advocates without interruption, asking no questions, voicing no opinions until, like a punctured beach ball, the silence is broken by the judgment. The discipline is plain. The judge only decides on what they hear and see in the trial. They don't come up with any bright ideas of their own. If they did, it might be characterised as bias, since you can bet your life that the bright idea will help one side more than the other.
But that's not our system. In this country, the po-faced arbitrator, the mute judge, doesn't exist.
The adversarial system still reigns, but we are much more interventionist, much more ready to be inquisitorial – Hutton-style inquiries are not widespread, but I see them in adjudication, I make them myself.
In other parts of the world, judges ask no questions, voice no opinions until, like a punctured beach ball, the silence is broken by the judgment
What I also do is tell the parties what I am thinking. Clever chap, I thought, until I was pulled up by a Court of Appeal case a few weeks ago. It is called London Borough of Southwark vs Jiminez. Here an employment tribunal told the parties what its provisional thinking was and did so before the final curtain. The panel was then accused of bias, of reaching a view hostile to one party before hearing the final submissions. Southwark said the panel showed a closed mind. Crumbs!
Will this mean that in future a chatterbox adjudicator or arbitrator such as myself, will have to shut their mouth? Mind you, the panel had been fairly trenchant when expressing those "provisional" views: the way Southwark had treated Mr Jiminez was appalling, and the panel gave 18 reasons why. When the final judgment was handed down, Southwark lost.
The council went to an employment appeal tribunal, which agreed agreed with it that those provisional views were evidence of a closed mind.
The Court of Appeal, however, said the opposite. It said that the views were indeed only preliminary, only provisional. Nor was the panel wrong to express doubt about aspects of one party's case, or to suggest that compelling evidence would be needed for it to succeed. Indeed, such comments are at the heart of our English system: adversarial procedure by way of oral hearing. True, comments might be injudicious and untimely, but dialogue between decision deciders and parties is useful.
But the court added a strong caution for tribunals that choose to indicate their decision before the hearing is concluded. Trenchant views can be easily misunderstood.
Tony Bingham is a barrister and arbitrator. You can email him at firstname.lastname@example.org.