Bar aims to expand arbitration role

Nick Hilborne reports;

As the Woolf review considers ways of unblocking the civil litigation log jam, the advantages of arbitration are being more widely discussed.

The Bar Council has launched Western Circuit Arbitration, a project aimed at propelling arbitration into the mainstream of civil litigation.

The new scheme's administrator, Robert Hill, says: "Until now arbitration has been confined mainly to low value or extremely complex cases. We want to take it to the middle ground.

"We intend to provide a professional service which will eventually bring our system of justice closer towards its continental counterparts. Barristers are in an ideal position to move into arbitration, both because of their skills as advocates and their independence."

Western Circuit Arbitration is launching three key new concepts in an attempt to streamline further and strengthen existing arbitration procedures.

The "complete resolution concept" imposes a duty on the arbitrator to ensure both parties understand what, in the arbitrator's opinion, are the relevant issues.

In discharging this duty the arbitrator's function remains a judicial one. He does not enter the arena as such. The aim is merely to ensure the dispute is resolved justly and that issues which arise in any dispute are fully appreciated and explored.

The second new concept is of the arbitrator/advocate. Each party is appointed an arbitrator/advocate, who has a duty to determine the case jointly and discuss the best way for the case to be presented.

If the case is not settled, the arbitrator/advocates must try the case and agree an award. If this is impossible, a third arbitrator or "umpire" is appointed who becomes sole arbitrator.

Finally there is the Judgment in escrow. This is an attempt to reduce the number of appeals against judgments by releasing a copy of the proposed award with reasons before it becomes binding. Both parties will then have the chance within a short time to draw to the arbitrator's and their opponent's attention any fundamental errors.

On the subject of costs, Hill suggests that a person wishing to pursue a u15,000 claim in the County Court may face costs of u10,000 to u12,000 by the time judgment is obtained. The same dispute could be settled by arbitration for a total cost, including arbitrator's fees, of around u4,000 to u5,000.

Hill says use of arbitration could reduce the dispute resolution period from two years to six months for matters being handled by the civil courts .