From nearly 40 years’ experience as arbitration counsel, and more recently as arbitrator, in my opinion one of arbitration’s most important features is flexibility. Too often, and especially in the common law world, arbitration blindly follows the path of court litigation. Many procedural meetings begin with a rudimentary description of the issues, followed by an attempt to agree a date for one main hearing, and then a series of procedural dates working back from that. The opportunity for effective case management is lost.

Every dispute is different. My approach to case management is to try to put in place the most efficient and robust pathway to final award. That may mean early resolution of discrete issues, perhaps on papers alone, or with a limited (maybe remote) hearing. It may mean early meetings of opposing expert witnesses, even before they write reports. It may mean early discrete document production.

My case management style style is proactive and collaborative. It is my job to listen carefully, try to accommodate the parties’ reasonable expectations, encourage agreement on efficient measures, and conduct the arbitration as best suited to resolution of the particular dispute, within the arbitration agreement and the applicable law and rules.

Some arbitrators state their style and preferences by way of answers to a questionnaire proposed by Ema Vidak-Gojkovic, Lucy Greenwood and Michael McIlwrath in Puppies or Kittens: How to Better Match Arbitrators to Party Expectations  (Austrian YB Int Arb 2016) >. Here are my answers. They are as straightforward as possible. Rather than qualifying each answer, I will simply say that there are likely to be exceptions. Again, every case is different.

Delegation: Do I  believe it is acceptable for an arbitrator to delegate work to a junior lawyer who is not a member of the tribunal?

No.

Tribunal secretaries: Do I believe that it is acceptable for a tribunal to appoint a secretary to assist it with the ad­min­is­tra­tive tasks relating to the proceedings?

Yes in appropriate cases, following advance discussion with the parties.

Preliminary or early decisions: Do I believe it is ap­pro­pri­ate for tribunals to attempt to identify and decide potentially dis­positive issues early in a case, even if one of the parties does not consent to this?

Yes.

Settlement facilitation: Do I believe arbitral tribunals should offer to assist parties in reaching a settlement, and actively look for opportunities to do so?

No.

Early views of strengths and weaknesses of claims and de­fenses: Do I believe arbitrators should provide parties with their preliminary views of the strengths and weaknesses of their claims and defenses?

Yes. If I can do this with the information I have, I usually will. As counsel, I find this extremely valuable.

IBA Rules of Evidence: Do I believe international tri­bu­nals should apply the rules in proceedings even if one of the parties objects to their application?

Not necessarily, but they are a helpful guide.

Document disclosure: Do I believe it is appropriate for international tribunals to grant a party’s request for e-discovery?

If the information sought is necessary and the request is proportionate, yes. Document production today is nearly all electronic.

Skeleton arguments: Do I prefer for parties to provide a summary of their arguments to the tribunal before the hearing?

Yes.

Chair nominations: Do I believe co-arbitrators should con­­­­sult with the parties who appointed them before proposing names for a chair to the other coarbitrator?

Only with the consent of the parties.

Arbitrator interviews: Am I available to be interviewed by the parties before being appointed (in accordance, for ex­ample, with the Guidelines for Arbitrator Interviews published by the Chartered Institute of Arbitrators)?

Yes.

Arbitrator interviews: If I am appointed as a co­arbi­tra­tor, do I think parties should interview a prospective chair that I and the other co-arbitrator have identified, before agreeing the appointment?

Yes if the parties agree to this.

Counsel misconduct: For a counsel that has engaged in misconduct, do I generally take steps while the pro­ceed­ings are underway, or include consideration of the misconduct in a subsequent
award of costs, or do you believe it is not with­in the responsibility of the arbitral tribunal? (choose only one)

(a) Discipline during proceedings, immediately when misconduct occurs

(b) Discipline both during proceedings and in subsequent award on costs

(c) Take misconduct into consideration in cost award

(d) Do not believe counsel misconduct is responsibility of the tribunal

This will depend on the misconduct and its relationship to the proceedings. In most cases the answer is likely to be (c), as there is little opportunity for a tribunal to ‘discipline’ counsel. But I would raise the issue straight away when the misconduct came to my attention.

Costs: Do I believe it is appropriate for a party to re­cov­er all of its reasonable costs (including counsel fees) if it has prevailed on its claims or defenses?

In general yes, subject to the arbitration agreement, the applicable law, and any circumstances justifying a different approach (such as misconduct). 

Costs: Do I believe it is appropriate for a party to re­cov­er the reasonable costs of any in-house counsel who conduct­ed or assisted the party’s conduct of the arbitration?

In general, yes when in-house counsel acted as counsel in the proceeding, subject to the same considerations. 

Do I view myself as conducting proceedings more in the style of the common law, the civil law, or no preference / depends on situation?

I have a common law background but, as described above, in my view arbitration can and frequently should deviate significantly from court practice of any tradition. So no preference / depends on the situation.

How I prefer to conduct arbitration proceedings in cases in I have been, or could be, appointed:

See above.

Mediation is a voluntary confidential process, where a mediator assists parties resolve a dispute by negotiation and agreement.

While mediation is very flexible, I usually follow a path like this:

• an initial call or meeting to identify the nature of the dispute and agree a process
• exchange of information (if required) and (usually) brief position papers
• often, a meeting with each party separately to discuss options and impediments to settlement
• usually, an intense one-day session with of a mix of joint and separate meetings, in which options for resolution are discussed
• if agreement is reached, it is reduced to writing and signed, on the same day.

My mediation style is primarily facilitative. I listen closely and read the materials given to me. I try to help parties articulate their own interests and suggested solutions, and to understand their opponents’ claims, interests, motivations, and suggestions.  I also draw on my experience to help parties understand risk.

In its most common form, conciliation resembles mediation: a conciliator helps parties resolve a dispute by negotiation and agreement. The process usually involves, in addition to this role of facilitating negotiation, the conciliator making a formal written recommendation if negotiation does not produce agreement. Depending on the contract or the rules, the recommendation may be non-binding or temporarily binding.

Conciliation is a frequent and successful technique for resolving construction disputes in Ireland. But it is often prolonged, taking much longer than the period agreed by contract (usually 6 weeks). This is usually unnecessary.

My approach to conciliation is to to devote all of my energy to helping the parties reach agreement. I follow the same pathway as for mediation, usually with an intense one-day session involving a mix of joint and private meetings. It is only if agreement cannot be reached that I turn to considering a recommendation, based on my assessment of the likely outcome of arbitration or litigation.

Irish public works contracts provide for project boards and a standing conciliator for individual disputes. Unfortunately, they are activated only for disputed claims and have no dispute prevention role.

Dispute boards evolved in the 1970s in the US as a mechanism for resolving contract disputes. Some dispute boards are ad hoc adjudication mechanisms. The FIDIC  1999 suite of contracts provided for a standing (red book) or ad hoc dispute adjudication board (DAB). The 2017 2nd edition calls them dispute avoidance and adjudication boards (DAAB), appointed on a standing basis for all the contract forms, with a
remit to assist the parties resolve any ‘issue or disagreement’ on their joint request, as well as to adjudicate disputes. Likewise, the NEC4 option W3 requires ‘potential disputes’ to be referred first to a standing dispute avoidance board, which, like a conciliator, makes a non-binding recommendation.

Adjudication is a procedure for arriving at a quick, temporarily binding, decision. It is a statutory remedy under most construction contracts in many common law countries. It is also sometimes prescribed by other contracts.

Expert determination is a contractual process for a quick, final, and binding decision. It is most suitable for discrete issues and disputes. Irish case law has been supportive of expert determination.

My approach is to set a timetable at the very outset and to my utmost to ensure that the timetable is stuck to. Most adjudications and expert determinations are conducted on paper, without a hearing of any kind. If there is conflicting evidence on an important material fact, witness evidence may be necessary. In my experience this is rare.

My task as an adjudicator is to manage the procedure so that each side has a fair opportunity to present its case, and I give a reasoned decision resolving the dispute within the time limit, or if there is no time limit, as quickly as possible consistent with a fair and robust process.

When parties have opposing views of the law that applies to their dispute, or the strength of their evidence, an early neutral evaluation by an experienced specialist can help unblock settlement negotiations at a fraction of the cost of finding out the result in litigation or arbitration.