The Seven Ages of Arbitration

The following posts were first published on LinkedIn from 24 to 30 May 2021.

(1)

When a commercial dispute is in its infancy, it is full of potential. There are many ways in which it could develop: it could become something that is fought over bitterly; it could be dealt with dispassionately, with a payment; it could be ignored in the hope it will go away.

Its guardians at this stage are often the manager and the in-house lawyer, one demanding an answer (sometimes an answer that is not available), the other trying to be realistic - and trying to work out whether this is something that can be contained or must be taken to external lawyers.

Often the main feeling here is frustration that the counterparty, someone they’ve previously done a deal with, is now acting this way and seemingly will not listen to reason. There is also fear - fear that the deal will collapse, that the lawyers will take over, and that the infant will grow into a monster (plus a little excitement perhaps; this is the cut and thrust of business).

(The Infant by Robert Smirke)

(2)

As an adolescent, the dispute is buffeted by opinions - opinions from internal counsel, opinions from external counsel, interpretations of the external opinions, reinterpretations of the internal opinions. Many people argue about how best to take care of it, and many worry about how much it will cost.

Through all this the child grows up. It’s finding its feet. It’s starting to head in a certain direction, sometimes along the lines that had been predicted, sometimes a different way. It may have acquired a nickname, a shorthand way that people refer to it. It’s becoming a feature of people’s lives.

It might be tested so that decisions can be made about its future. Reports are made and circulated. A few people are starting to think it might amount to something big. Others remain concerned it might turn out to be a trouble-maker. Although they might not admit it, no-one is quite sure of what the future holds.

(The Schoolboy by Robert Smirke)

(3)

When it reaches early adulthood, the dispute loves and is loved. Now the parties are fired with enthusiasm; now the counsel rush to write down their arguments; now the arbitrators dive into their new case.

It’s a time of coming together. Teams form on both sides. The tribunal assembles. There may be pitches and beauty parades. People want to be chosen.

And the dispute, still fragile, is at the centre of all this. The parties and their teams are separated but united by this fascinating creature. It reaches out to pull them in.

(The Lover by Robert Smirke)

(4)

The dispute now enters its martial phase. The parties have drawn up their battle lines and are preparing their weapons. What else are memorials but armaments launched upon the enemy? They are intended to inflict maximum damage (sometimes, when printed, their weight alone causes serious injury).

Preparation of a memorial is a military operation. The people involved need to be dedicated to the cause. Everyone has their rank and their place: there are generals, officers and foot soldiers. Specialists are brought in as needed, and coordination is vital.

There is no chance of settlement at this stage. The parties have paid for their cannon and they want to use it. It also gives them confidence: they feel safe behind it. There may be some regret that things have got to this stage, but overall they are looking forward to the clash of arms.

(The Soldier by Robert Smirke)

(5)

By the time of the hearing, the dispute has matured. It must now put aside the bright imaginings of its youthful opinions and the bluff rhetoric of its memorials. It must now confront the reality of what has been done and what comes next.

There is nothing like taking a seat in a hearing-room for a jolt of reality to the system. Parties have lived for so long in their own worlds. In the hearing, they must look each other in the eye, and look the tribunal in the eye, and face up to flaws in their arguments that they may have avoided until now. Wisdom is gained late in the day after the dispute has already grown a fair round belly.

(The Justice by Robert Smirke)

(6)

By the time it reaches old age, the dispute has seen and heard too much. It has become weary of the arguments. But it has one last labour: producing the award. The arbitrators must slave over this in the dark nights ahead.

The award is full of ego. Each party wants it to favour their position. Each arbitrator wants it to reflect well on them. Each person involved in the dispute is conscious it is their last chance to shine in the limelight - or to avoid the glare of publicity if they have made a mistake.

In a final irony, parties who were once divided and frustrated with each other are now united by their anxiety over the outcome, and by their frustration over the time the arbitrators are taking. They wait in fear and in hope for the end.

(The Pantaloon by Robert Smirke)

(7)

?What ends this strange eventful history of a dispute? When the parties look back after receiving the award, win or lose, what has been achieved? Has justice been done, have objectives been reached, has honour been satisfied? And is there a second life still to come, in the courts?

Or does the dispute sink into mere oblivion, sans teeth, sans eyes, sans taste, sans everything?

(Old Age by Robert Smirke)