HOW SHOULD ARBITRATORS BE TRAINED

11th June 1997

Institute of Civil Engineers HQ

Chairman Nicholas Bridges-Adams

FCIArb Barrister

Speakers:

Kerry Harding

FCIArb Secretary General

Professor J .E Adams

Emeritus Queen Mary & Westfield

University London

Anthony Sinata RICS

Chairman ADR Adjudication Panel

Derek Simmons

Advisory Panel

Roger Dyer RIBA

Architect / Barrister

Nicholas Bridges-Adams the Chairman of the London Branch introduced the guest speakers. He then went onto say that 50% of the population and 50% of small business cannot afford Litigation, as Legal Aid was not available to them. He made the point that Arbitrators are highly qualified professional people. He said in his view that there should be an appeal system from arbitrators decisions the consensus for this opinion was that the judiciary get it wrong some times, consequently it is possible that arbitrators get things wrong, especially with large personal injury claims. Mr Bridges - Adams then introduced the first speaker Kerry Harding.

Kerry Harding

Mr Harding started by saying that the Institute was the world's leading authority on arbitration and promoted excellence and meaningful jobs for self motivated learners. Then went onto say "what is arbitration". It is a way of resolving disputes in private and the responsibility of the arbitrator to listen and be fair and to provide a cost effective service and that the decision must be a final judgement. The arbitrator is a mature person with qualifications in a primary profession. The purpose of training was (1) to teach (2) to update and improve knowledge. The definition of training in his view was: through personal education and study by attending training seminars, journals, correspondence course's, the internet, surgeries and conferences. It appears that there will be some change in the near future, as it was suggested that there will be personal assessments as there will be a moot drive for young training lawyers, by video link and films, written examinations over the internet and a suggestion regards psychometric testing.

Professor Adams

Professor Adams said he had sent a survey to 70 Law Departments to find out the scope of their knowledge with regards to arbitration. He stated that there was a reply within a month from 50, to which 50% said there was no mention of arbitration except possibly for passing mention in introduction to legal system course. The remaining 50% made no comment at all.

The survey questions were as follows:

(a) No teaching of arbitration at all (except possibly for passing mention in introduction to legal system course)

(b) Treatment as part of course e.g. on International Trade - 3 ( LLM ) and on Labour Law - 1 ( LLB/Diploma )

(d) Separate Course(s) as part of Masters of Laws programme -

5 + 1 (proposed) Specimen syllabus attached

(e) Separate Course(s) as part of postgraduate Construction Law programme - 2

(f) Elements of Master's Course on Dispute Resolution - 1 + 1 (proposed) Specimen syllabus attached

Some of (d) and (f) give exemption from elements of Chartered Institute's requirements.

The Queen Mary (London University) have a syllabus in two post-graduate courses in Construction Law. They are about to start a Master of Arts in Arbitration and Dispute Resolution and have an outline of syllabus. Some lawyers are exempt from LW2723 commercial contracts. There has been a growing interest in this course which is run in the evenings over 18 weeks of the year, in the final year there is a 15,000 word dissertation.

Anthony Sinata

Mr Sinata was from the RICS ADR and adjudication practice panel, consequently a high proportion of appointments were for rent reviews and expert surveyors. The RICS training for this was a 6-day training course, which was followed by the appointment to residential panel. However all new entrants will now have to have academic qualifications from the CIArb, as there is a feeling it would be useful towards property disputes, working with an academic body for training Chartered Surveyors. There was a feeling that the qualities required for mediation are: certain social skills and human skills in psychology. Mr Sinata said that there was not enough work for the 700 on the panel. Finally he said that he did not want to be in charge of a geriatric panel and welcomed younger people.

Derek Simmons

Kerry mentioned CPD to train arbitrators to a certain standard, but there were no guarantees that standards would be maintained. There is up-dating and improvement required of those on the registered panel, consequently all senior people are encouraged to do CPD, to ensure arbitrators do not become stale, and keep up with new developments in the law, arbitration management and award writing. It was said that lots of people object to attending CPD meetings. There was a working party set up two years ago, at this point in time there are proposals to go before Council before a wider consultation. The proposal for CPD is that Registered Arbitrators should do 60 hours, over a 3 year period, Fellows not registered, will be encouraged to 40 hours CPD. This can be done in a number of different ways, through attending other professional institutes' CPD meetings, primary professional CPD meetings, arbitration experience, being a neutral person, expert witness, and preparation of papers, will qualify, as well as attendance at other relevant courses, such as expert witness, or arbitration management courses. In addition to this CPD can be done by reading journals, relevant professional reading, and attendance at technical meetings. Therefore it will not be difficult to achieve 20 hours a year. If there is a deficit, arbitrators will be allowed to make up the deficit in the following year, and surplus years can be brought forward, to comply

Roger Dyer

There is talk of training by experience, at the West Midlands branch. This may be done by mooting, by inviting pupil barristers, to prepare cases for interlocutories, security for costs etc .There will be arbitrators sitting, and their performance will be monitored on video, this will be replayed to experienced arbitrators, to assess their performance, as this will be invaluable to training arbitrators. They have been approached by two other branches in the South Coast Area. There is a feeling that this will assist those preparing for their exam and award writing.

This was followed by a lively debate, there was some criticism about lawyers, by the anti lawyer faction, that is of the opinion that lawyers make arbitration too formal per se. It appears that there may be some merit in the criticism of lawyers, but there is also some merit in the fact that lawyers do set out the case in detail, which make it much easier for the arbitrator to understand the sometimes complex issues, which is not always the case when layman draft pleadings. It is also a fact that the parties to a arbitration can choose how the arbitration is conducted, consequently it is just possible the parties may want a formal arbitration as opposed to an informal arbitration, consequently I am in favour of the status quo. In addition to this I would be in favour of mooting for training arbitrators during supervised training, I would even go as far as saying it should be a prerequisite to preparing associates for the Part II exam, as I feel this would be invaluable training.

Report by Public Relations Officer:

J.E.Stockley ACIOB MIMgt ACIArb ABEng