Helping the poor struggler

An innovation of the Chartered Institute of Arbitrators deserves a pat on the back. Every few weeks an email pops up from them containing a debating point. It coaxes its members to post a reply.

This week raised a real problem: “An arbitrator (or adjudicator) may be faced with a situation where one party is disadvantaged because it chooses to represent itself, or its legal representation is incompetent. A neutral arbiter may believe that justice will be best served by intervening to correct such an imbalance in representation. How can one avoid actual or apparent bias while ensuring that a party has adequate opportunity to present its case in such situations?”

I think what the author of the question is driving at is that some disputing parties have developed social and moral notions of “justice”, which they fully expect the arbitrator, adjudicator or judge to apply instead of the rather more boring machinery for deciding disputes. There is a mismatch of expectations between the tribunal and the party. But it does seem that arbitrators, adjudicators, judges could do better at accommodating parties that are not familiar with the rigmarole of “due process”.

We dispute deciders could, first and foremost, agree between us what we are and tell everyone. The first base position is that we are neutral arbiters. Lord Denning put it this way: “The judge holds the balance between the contending parties without himself taking part in their disputations.”

But some arbitrators, adjudicators and judges nowadays are not comfortable with passive neutrality. They intervene. So the alternative second base position is to adopt an interventionist role.

Perhaps we dispute deciders should be sprayed with different coloured paints to tell the parties what base we each start from. Some of us are interventionist, some are not. There are even varying degrees of intervening; some will only go as far as telling a party they should get legal advice. At the other end of the spectrum there are those who take a direct engagement with the substantive issues before them; even going so far as making explicit reference to legal positions, which in truth is advising the parties, or taking up lines of questioning on a party’s behalf, that is, cross-examining. To do that is to abandon the role of neutral arbiter in favour of neutral advocate. More politely, this is the “inquisitorial judge” or arbitrator.

Credit: Simone Lia

"It's a bit tricky getting out of our roles, especially when we are spray painted"

"I suggest you seek advice before ordering those chips"

Perhaps we dispute deciders should be sprayed with different colours to tell the parties what base we each start from

And if you tell parties that in this country we use adversarial due process and not inquisitorial due process, some would not have a clue what you are talking about.

Some will. The mismatch gets even worse when we turn to the parties’, and their representatives’, expectations. The more aware parties and the especially aware representatives rail against the busybody dispute decider.

There is deep resentment when an arbitrator, adjudicator or judge takes a line of questioning that “helps” the other side; or he suggests he needs “help” with the case of Smith vs Jones; or suggests there is not enough evidence to show this or that. This spray-painted fellow is seen to be biased; though he sees it as being just.

The most anger is reserved for the dispute decider who points to clauses or rights not argued by either party. So, do you see why the question put by the Chartered Institute of Arbitrators seeks to explore how to avoid actual or perceived bias when giving a leg up to an amateur or incompetent party?

In real life it happens that a party cannot afford a competent representative and goes it alone or buys in an “iffy” representative. In real life, too, a party sometimes deliberately chooses to represent themselves or their firm. They want to have their say or importantly they want to articulate their notions of justice. The merits and justice of their position become more important than evidence, more important that the law, facts, rights, the contract. And since they believe all the merits are on their side, they believe that the tribunal will favour their position, and help them to win.

However, most of the answers posted on the Chartered Institute of Arbitrators website favoured an arm’s-length, hands-off approach. Tins of spray paint are being delivered to the Chartered Institute of Arbitrators today.