Arbritators need to adopt a more flexible approach to resolution
In my youth I was impressed by the fable of the oak and the bullrush. Daily the mighty oak towered over the reed and mocked it for being, well, weedy. Regularly the tree would boast about how firm it stood in the face of all weather while the rush bent this way and that, at the mercy of the slightest puff of wind. You know the ending, of course.
One day, probably in October 1987, a storm blew up for which the tree was no match. The next day dawned upon a fallen oak tree and a bent bullrush, looking forward to a long life, free from arboreal harassment. The moral of the tale?
Flexibility is the secret of success. Subsequent experience has demonstrated that this is something of a universal truism to be applied to all aspects of life.
The fact that it is true in the world of dispute resolution, just as much as in the floral kingdom, was the theme adopted by construction arbitrator John Tackaberry QC when giving the Worshipful Company of Arbitrators' annual lecture, at King's College in March.
The lecture rejoiced in the title 'Flexing the knotted oak: English Arbitration's task and opportunity in the first decade of the new century', something of a mouthful which, we were told, was designed to ensure that no one attended the lecture and that the Company's Master, Victoria Russell, and Mr Tackaberry could proceed direct to the drinks.
They must have been disappointed by the packed attendance.The title was taken from the quotation from Shakespeare's Troilus and Cressida, 'the splitting wind that makes flexible the knees of the knotted oaks'. Tackaberry's message was that, historically, arbitration had a reputation for being rather arthritic or unbending, and that, as a result, other forms of dispute resolution, such as mediation and adjudication, had stolen a march.
Now, he argued, there was a strong incentive for arbitration to become, as it were, a less 'oaky' and a more 'reedy' forum. Inevitably Tackaberry pointed to the 1996 Arbitration Act as the main vehicle for this change. Applying the adage that what goes without saying, goes better said, Tackaberry stated, what he considered to be the obvious proposition, that the function of arbitration was to produce a decision of quality by reference to the rights and obligations of the parties.
He reminded the many arbitrators in the audience of their obligation to:
ladopt procedures suitable to the circumstances of the particular case;
lavoid unnecessary delay or expense; and lprovide a fair means for resolution of the matters in issue.
He then highlighted provisions of the Act which enable arbitrators to adopt a more flexible approach to this task, focusing particularly on the problems of amendments to the parties' cases, the pros and cons of oral and written submissions and the cost control mechanisms of ordering security for costs, and capping the parties' recoverable costs.
But a dispute resolution process is only as flexible as the people who operate it. The substance of Tackaberry's lecture was not, therefore, that arbitration now has to be quick but, rather, that arbitrators should be.
Various arbitratorappointing bodies have recognised that the quality of the decision depends upon the calibre of the person making the decision, and have adopted procedures to ensure the quality of their arbitral product. The RICS has recently carried out an independent assessment of all its rent review arbitrators, requiring them to attend a training course, complete a written assignment and pass an examination and then an interview.
Nearly 100 declined or failed the assessment.
The process will be repeated in five years' time to achieve the RICS's goal of ensuring that its dispute resolvers meet the standards of the moment. Similarly, the Chartered Institute of Arbitrators is considering procedures for keeping chartered arbitrators up to the mark with the award, or otherwise of practising certificates.
It seems that the gist of Tackaberry's message to arbitrators is not falling on stoney ground. If you do not want to share the fate of the oak tree, crack those arthritic knuckles, limber up and perform some arbitral yoga.