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Role of the Arbitrator.

Posted on 06/06/2016 · Posted in Arbitration

As arbitration becomes an increasingly attractive alternative way of resolving disputes compared to lengthy and often expensive court proceedings, arbitrators are ever more in demand and their roles increasingly important. Arbitration is often favoured over formal litigation not only from a cost and time efficiency perspective, but also because it often offers more practical solutions, and as a process is structured specifically to facilitate resolution.

Thus the arbitrator’s role is a crucial one, and one that demands a unique combination of experience, knowledge and skill. It is increasingly common to find arbitration clauses in consumer and business contracts, and its prevalence only attests to its usefulness as a dispute resolution method.

What does an Arbitrator do?

Not unlike a judge in a court proceeding, an arbitrator is an independent and impartial third party who carefully considers and analyses the evidence put before him or her, drawing on his or her knowledge of relevant laws and policies in order to weigh up each party’s case and make a resulting ruling. However, unlike a judge, an arbitrator is actually chosen by the disputing parties in lieu of formal court proceedings, and may be selected specifically for his or her industry knowledge particularly in complex cases where specialised expertise might be required.

An arbitrator will often encourage collaborative communication between disputing parties in an attempt to reach settlement before official arbitration proceedings begin, and throughout proceedings will act as a referee, facilitating discussion. If a settlement is reached, the arbitrator will then draft a settlement agreement.

If settlement cannot be reached and the parties move to formal (binding) arbitration proceedings, an arbitrator acts like a judge in reviewing and interpreting all the evidence presented to him or her (this may include witness statements, testimony, documentation and so on), applying the relevant laws and rules to the arbitration, and then making a final decision or ‘award’ which – like a judge’s – is final and binding, and can only be appealed against in certain unique circumstances. Non-binding arbitrations can later be taken to court if clients are dissatisfied with the process or its outcome, whereas binding arbitrations are generally upheld to be such, by practitioners and by courts.

We are made wise not by the recollection of our past, but by the responsibility for our future”
George Bernard Shaw

What ethics are Arbitrators bound by?

As well as the multiple and sometimes complex practical responsibilities arbitrators assume, there are also a number of non-binding ethical codes for arbitrators, some of which are set out in the Arbitration Act, while others have been developed by judges and can be found in the common law. Section 33 of The Arbitration Act 1996 states that “the tribunal shall—(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.”

For clients new to alternative dispute resolution methods, it may feel like a leap of faith placing one’s trust in somebody outside of the court. However, arbitrators, like lawyers, are well regulated by external bodies such as the International Chamber of Commerce (ICC), to uphold the same core values that are enshrined in the court system. Expert Evidence’s experts are no different, and are approved by external bodies such as the Expert Witness Institute, Sweet and Maxwell, and the UK register of Expert Witnesses.

Who can become an Arbitrator?

The law does not impose restrictions on who can become an arbitrator, and an arbitrator does not need to have formal legal training. In fact, where disputes revolve around a specific industry, the disputing parties’ priority may be to seek to appoint an arbitrator who has experience in that sector and therefore understands its context and complexities. Either way, becoming a professional arbitrator is a rigorous process, involving substantial training and practical experience. In the UK, the Chartered Institute of Arbitrators trains and accredits practitioners to know and apply all the relevant laws, and to determine awards based on evaluation of all the evidence put before them.

Choosing an arbitrator

As one of the most exciting characteristics of arbitration is that clients have the agency to choose who hears and determines the outcome of their dispute, how does one make the important decision of choosing an arbitrator? It is often helpful to consider both an arbitrator’s legal experience and their field of expertise outside of law. Often arbitrators are chosen via word of mouth recommendation, however if such an opportunity doesn’t arise one may find expert directories helpful, such as the one mentioned below.

For more help on choosing an expert, see Expert Evidence’s list of experts:

Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.