report by James
Mumford
Margaret Rutherford – what can I say
that you do not know already? – energetic, challenging, but above all enthusiastic
in the cause of arbitration. Dashing between a shipboard conference on the
Mediterranean and relaxation in the South of France, Margaret paused long
enough to present the Branch with her view of the correct image of the
arbitrator.
Margaret acknowledged at the outset
that arbitration is suffering from a poor image amongst certain areas of user.
Costs and delay are the main complaints. These are partly the result of
historic procedural problems that have now been rectified by the 1996 Act, but chiefly
it was the fault of arbitrators failing effectively to project their own
authority and the value of arbitration. Outside its small circle of users and
practitioners, arbitration is at best misunderstood but mostly it is totally
unknown.
Image is important. The arbitrator is
in the market place selling his wares alongside all the other dispute
resolution services. Two elements are required to make the customer choose
arbitration; a sound intellectual reason for selecting the process of
arbitration, and confidence in the abilities and wisdom of the arbitrator. This confidence is largely created by the
image generated by the arbitrator.
Margaret is clearly fascinated by the
psychology of personal relationships and by the effects of body language in projecting
image. As mere men (my apologies to Anne Kenny), we were told that we often
failed to understand the importance and effect of our appearance and demeanour
on the confidence that we created, or otherwise, in the whole process of
arbitration. It should be seen as an honour and a privilege to be requested to
decide on another’s problem, and we should dress and behave in a manner to
justify that respect.
Whilst image is important, the intellectual
case for arbitration also needs to be sound. Combating ignorance in the whole
process of arbitration is the first step, but it is important to recognise that
the procedure has both strengths and weaknesses. Do not be tempted to sell arbitration where it is inappropriate;
but neither should we be shy of arguing its advantages where they are apparent.
Privacy and speed are frequently important factors in favour of arbitration
over litigation whilst procedural flexibility to meet the needs of the parties
should often be able to “close the deal”. To be effective, the parties must
have the confidence that the arbitrator can deliver. However, it is in the
field of international disputes that arbitration is strongest since it has
little effective competition.
In her normal practical way, Margaret
had clear advice on how we could improve ourselves as arbitrators:
·
Arbitrators are the public face of arbitration. They
should present an image that wins respect both for themselves and the
process. They should be confident and
skilled and have the flexibility to apply firmly and fairly whatever procedure
is appropriate for the circumstances of the dispute.
·
Judicial capacity.
It is like an elephant – it is difficult to describe but everyone knows
it when they see it. If you have it,
use it wisely and with confidence and in a manner that will generate
respect. If you don’t have it, take up
something else because it is vital to the good arbitrator.
·
Improve ourselves. Maintain your CPD, both in
arbitration and in your own profession.
The law is moving quickly and we must keep up.
·
Maintain impartiality. Confidence is lost if there is
any doubt over impartiality; be very careful over the possibility of individual
encounters with the parties or their representatives and be aware of the
possibility of traps.
·
Don’t make mistakes. Seems basic, but it is surprising
how simple mistakes often creep in, adversely affecting not only our own image
of skilled and careful arbitrators, but also the image of arbitration as a whole.
Ensure that your procedure and drafting are correct and that there is no doubt
over the enforceability of your award.
To assist
those members present, Margaret kindly provided four pages of notes setting out
the main points of her talk which I will be pleased to copy to any member so
requesting at an immodest fee. Better value probably will be obtained by
approaching the Branch Secretary for a copy of this valuable aide-memoire or by
visiting our website where I am sure it will appear in due course.
The Branch
is, once again, indebted to Margaret Rutherford for these fruits of her
wide-ranging knowledge and experience and for her kindness and energy in
finding the time to visit the Branch between her many and far-flung
engagements.