These 5 methods can help lawyers focus on getting the best arbitration outcomes in today’s legal jungle. Increasingly clients are looking to legal practitioners with the expectation of receiving more than just pure legal advice.
These days most clients are seeking not just help with dispute resolutions, but are also asking for advice on procedures for resolving problems before they arise and as they arise.
“If a dispute does arise, then clients want practitioners to develop a dispute resolution strategy to meet the client’s objectives or interests… arbitrators should exercise the powers that they already hold to improve the efficiency of arbitration in order to resolve disputes as quickly and cheaply as possible”, explains Julie Soars, barrister & Chartered Institute of Arbitrators board member.
1. First and foremost arbitration practitioners must be armed with a dispute resolution policy (this is different to an arbitration or litigation strategy) and ensure the process is not dominated by the lawyer; that the client’s voice is heard above the rest, as their interests & objectives come first and should be foremost kept in mind. The dispute resolution policy must identify these interests and objectives, aiming to make them a reality.
2. Dispute avoidance boards should be welcomed predominantly by clients involved in construction & infrastructure contracts and possibly also those employed on insurance and reinsurance contracts, among others. Dispute avoidance boards are formed before a construction project begins. Such boards are made up of 3 neutral members whose job is to facilitate communication between the contracted parties and provide dispute resolution services if required. The board’s decisions are non-binding.
“DABs [Dispute avoidance boards] can head off disputes before they arise and can be used proactively, rather than sitting back and waiting for the retrospective focus of other…techniques such as mediation and arbitration”, points out Ms Soars.
3. Construction and infrastructure arbitrators must make sure they’re armed with comprehensive subject matter knowledge so they have a full understanding of the issue and can formulate a clear plan of attack.
“Practitioners with subject matter expertise on DABs have an advantage, because that expertise enables them to see where unplanned costs are likely to arise and to encourage the parties to deal with the issues before they become full-blown disputes”, says Ms Soars.
4. Look to new techniques to get the edge such as contractually providing for a contract facilitator to advise and decide on the best method to resolve the dispute at hand, as well as providing continued aid to avoid future disputes arising.
5. Practitioners should avoid using the same set of procedures for each matter, but rather look to build resolution procedures from scratch. Keep the client’s objectives and interests as the centrepiece of importance and meet their interests and objectives to keep them engaged in the process. This lessens their motivation for destructive tactics and game playing.
“Furthermore, arbitrators should take advantage of the flexibility of the arbitration procedure to embrace new technology, such as electronic case management and even holographic telepresence for witness evidence, in order to improve the efficiency of arbitration,” adds Ms Soars.