Time wasters

Last week it was Paris: a spot of lecturing on disputomania with an international gathering of construction MSc students. This week it was Dublin: listening to lectures on disputomania with an international gathering of arbitrators, adjudicators and mediators and (I nearly forgot) conciliators.

But first, it’s time for a few asides. Asides always happen on these sorts of trips. My Paris stay included a visit to the International Chamber of Commerce (ICC). One of its functions is to appoint arbitrators to disputes all over the world. The students – and me, too – were very interested in the slip road just outside the ICC front door which leads to an extremely big dispute. Princess Diana’s fate was decided in the tunnel at the end of it.

My Irish aside happened when I found myself seated next to Dr Ian Paisley, Northern Ireland first minister. He was guest speaker at the Dublin Dispute Management Conference hosted by the Irish branch of the Chartered Institute of Arbitrators.

This chap seems to have been bellowing No! No! No! at me through my TV screen all my life. But here in Dublin, this long-reigning king of disputomania was given a standing ovation. Wow.

Whether it is Paris, Dublin or Moscow, the world is in search of dispute resolvers – or rather, dispute resolution systems. Or at least one half of the disputers’ search for a dispute resolution. Half? Yes half.

Didn’t you know? When A and B are in dispute, one or the other is not in search of a judge or arbitrator or mediator or (I nearly forgot) conciliator. Instead, the search is for a foot-dragger.

Whether it’s Biggleswade or Bangladesh, it is a glorious relief when the claimant begins litigation. The defendant can smile.

All those demands to pay simply stop, now, immediately and forthwith. Oh, merciful release!

When A and B are in dispute, one or the other is not in search of a judge, arbitrator or mediator. The search is for a foot-dragger

When the litigation begins, the clock is exchanged for a calendar. How, oh how, do we cut through the rules of dispute resolution to get to the end of the race?

Of course, those damnable rules are all based on fairness. This is a huge contradiction. A deep, forensic inquiry into a dispute requires absolute fairness in procedure … including the lead-up to actually resolving the dispute. This system is a New York marathon; a lung-bursting, foot-pounding 26.2 miles. Try the 100-yard dash instead. One is shorter and faster; the other is fairer and more legitimate.

What we really need, said the Australian speaker at the conference, is the dash. Like Great Britain and Northern Ireland, New Zealand, Singapore and others, Australia has gone for a 28-day binding, decision-making dash. In second place is mediation: Dublin goes for that.

In short, when no fast-track judicial system is available the folks look for a system that coaxes a compromise out of the claimants. The snag is the foot-dragger or the pretender. They don’t want to compromise; these boys want to go all the way. The snag, too, is that mediation is acquiring a reputation for playing fast and loose with legal rights – claimants have to compromise or run the marathon.

Some mediators don’t even approve of talking about legal rights. And some litigation courts bully parties into mediation. Then someone at the conference talked about (I had nearly forgotten) conciliation.

I had always thought of conciliation as just another brand of amicable dispute settlement. But the talk is different now. The conciliator seems to be more willing to discuss legal rights as part of their amicable dispute-resolution process.

As soon as the parties break into the private meeting with the conciliator they almost always want to discuss their rights. The conciliator gives them a reality check; says privately what success those “rights” might have if the conciliator were the binding tribunal instead of a mere facilitator. This system works precisely because both parties feel able to express their views on their “rights”.

And because these days commercial people are very aware of contractual rights and duties, the independent view of an outside conciliator about those rights very often stimulates a settlement. Oh, I nearly forgot, some mediators do this, too.