So, yes, I admit I am a fan of arbitration, or rather a fan of the old grandad when he's had a shave, a shower and a new kit of clothes. And I'm not alone. Professor John Uff, leading barrister and arbitrator, is seeking changes: he urges such people as the Chartered Institute of Arbitrators to listen to client's expectations and needs. Well, I am a client and I have some needs and I want arbitrators and institutes and movers and shakers to spruce up the old boy.
Uff's article in the Journal of the Chartered Institute of Arbitrators (February, 2001) is well worth a read. He characterises arbitration as private dispute resolution. I detect that he would like to explain arbitration as a "variety" of different methods and the arbitrator as a "dispute resolver".
Hurrah! But look, I have watched a whole variety of arbitrators in the past 20 years trying to imitate High Court judges. The reason is that they thought arbitration was litigation in suits. Silly. Never intended. Stop it. What I want is a damn good industry person who is not imprisoned by procedural rules, not oppressed by the mechanics of particular dispute resolution, but rather is able to investigate the quarrel, get to something called the truth then apply the rules of the bargain and tell the parties what the score is. But, wait, go further. Let the dispute resolver, this new-age old man arbitrator, be able to cross all the boundaries to solve the dispute.
This old man arbitrator, spruced up and in new clothes, is no longer a quantity surveyor dressed up in horse hair wig and gown
And let's not confine him to dealing with a dispute. A dispute is the net result of differences of opinion. A dispute is something that matures from the toing and froing of mere claims. Let grandad arbitration get stuck in at the mere claim stage as well … if the parties want him to. An old fashioned arbitrator could only begin to do his stuff once a dispute had arisen. But I am ever so keen on an arbitrator acting like a dispute review board. The board visits the project during the progress of the work and takes an interest in claims or complaints. Why? So that this visitor can mediate, or assist negotiations, or express a view about the mere claim. There are no barriers between those roles and this is pre-dispute, or rather a dispute avoidance role for the new arbitrator. Then, when and if the dispute has crystallised, keep the barriers and boundaries off the pitch. Let the arbitrator mediate, negotiate, express opinions, investigate and make binding decisions.
This old man arbitrator, spruced up and in new clothes, is no longer a parachuted quantity surveyor dressed up in horse hair wig and gown: he is a hard-headed hard-hatted builder with the tact, diplomacy, halo and wings of an angel.
Meanwhile, would you unwashed, unshaven arbitrators please do something straight away. Please stop taking your customers by surprise. Once you are ready to make your award, don't make it. Instead, send it to the parties for "comment".
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.