Fast Arbitration by Judge Ezra Goldstein

Litigation is expensive and?with the backlogs at court your case could take a long time to resolve, especially if there are interlocutory skirmishes and then an appeal. And formal arbitration can?be?so?expensive?that the costs are a deterrent to this being a good alternative.?But arbitration before a retired Judge is?attractive because the Judge will have such a wealth of experience and insights into?all sorts of cases, parties and transactions.?So what can be done? Read below what Judge Ezra Goldstein, who practised as an advocate for 20 years, 5 as Senior Counsel, served on the Bench for 21 and has arbitrated for 14, offers as a solution – Fast Arbitration.

JUDGE EZRA GOLDSTEIN

I have thought of a new way of arbitrating for litigants who cannot afford the conventional court or arbitration route. I interview plaintiff and defendant together, with or without representation, question them, look at the documents and other evidence, research the law and make a decision. Of course, if I can mediate a settlement along the way I would do that. Litigants pay for time actually spent and there is no day fee. Most of the meeting sessions are limited to two hours. Have done a little of that and it seems to work. Of course, the procedure can be tweaked in various ways.

In one I did recently I heard both sides informally, did research into an interesting legal point, and then gave, with the consent of the parties, a written prima facie view giving the “loser” the opportunity to elect to convert the proceedings to a formal arbitration with pleadings and evidence etc. I did?another on a WhatsApp call and after about an hour and three quarters saw the possibility of a settlement and was able to effect it so that both parties left happy.

I have had a query about the problem of getting a prospective defendant to agree to the fast inexpensive arbitration I propose. I suggest that one says to him/her: if you refuse to agree to this inexpensive route my client will sue you in the High Court and the case will cost you a lot more. My suggestion for persuading a recalcitrant defendant won’t work with a conventional arbitration because the costs of the latter are often the same as or more than that of court proceedings. So this feature of the fast arbitration is an advantage unique to it.

To reduce arbitration time and to increase the expeditious effectiveness of the procedure attorneys and counsel ought to ensure that their clients are fully prepared and focused on the relevant issues, and also that a bundle of the relevant documents is prepared and paginated (not necessarily indexed) for both sides and for me.

Where clients are willing to incur the costs of briefing junior counsel, but not in addition the full costs of a senior, I assist the junior at an hourly rate and, since I do not myself appear, there is no day charge. I assisted last year in a voluminous opposed application – I think in excess of 1,000 pages - involving, inter alia, the pricing of shares and I identified the facts which were undisputed as well as an argument which greatly increased the claim of about R23 million and, after heads of only 8 pages, resulted in a settlement of the claim at a figure of about R36 million – a settlement I was intimately involved in until the end.?I describe myself as a consultant to counsel. Of course, I can also act as consultant to attorney.

I have addressed litigators at Orelowitz Inc, Werksmans and Bowmans on my work, and am, of course, prepared to address others.

Ezra Goldstein (Judge)

082 466 7401

[email protected]?

[email protected]