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President's Forum
Brian Eggleston, 21st September 2004
Brian Eggleston visited the Branch in September, shortly after his term of office had been extended by the delay in Privy Council approval of the Institute's 'Agenda for Change' proposals. He took it all in his stride, taking a long, historical view of where the Institute and dispute resolution are now.
He reminded us of the three rules of the good old days of arbitration: never answer a letter in less than a fortnight, never say anything at a hearing, and never give reasons. How did anyone get away with that? It was a time of respect for elders and betters, and of trust in the way business was conducted. So it was quite natural for business to rely on lay personnel for dispute resolution. Nowadays there are many more commercial pressures, and our culture is one of blame and compensation.
Brian gave us a quick tour of current arbitration as he saw it. International arbitration prospers, as it underpins much cross-border trade and investment. Domestic arbitration withers, hijacked by lawyers and hampered by too much court interference through actions for 'serious irregularity' (despite the 1996 arbitration Act's philosophy of promoting party autonomy). As an aside, Brian gave his view that large arbitrations with QCs on both sides were much easier to handle than small residential disputes on which most arbitrators cut their teeth.
Arbitration had become slow and costly, and as a result other forms of dispute resolution had grown in popularity. Adjudication had been a wake-up call for the building industry and for arbitrators. It had been much more widely used than the drafters of the Construction Act can ever have expected. Was it now tailing off? It was beginning to resemble arbitration, with extended timescales, hearings, counsel and experts.
Mediation was growing in popularity, and 50% of Institute members had some involvement in it. It was notable that, in contrast with the Institute's roots in commercial arbitration, most mediations were non-commercial.
Other current forms of ADR were Early Neutral Evaluation, Dispute Resolution Boards (on larger projects only as their decisions are not binding and they can be expensive), and Expert Determination (binding decisions, and no appeals).
Looking to the future, Brian saw continuing demand for arbitration due to its high level of finality. Scheme arbitrations would remain popular, but arbitration would never regain its pre-eminence in construction. Adjudication would continue to become more like arbitration, either because of changes in the law or due to pressure from the courts.
What impact would this have on the Institute? Its composition was changing. The Institute would become increasingly international as overseas membership grew. The lay tribunal was fast disappearing. There was growing interest in mediation, and, although the attempt to introduce 'Chartered Mediator' had failed, there would be developments in mediator training and status.
Brian ended with a call to the branches to seize the opportunity offered to them at the biennial Institute Congress. This was their chance to get topics and issues on the Institute agenda, a chance they should not miss.
Report by: Robin Orme