Navigating Stormy Waters: How To Manage Tribunal Dynamics As A New Arbitrator

• Published date: 15 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Gatehouse Chambers
• Author: Mr Frederico Singarajah

This article discusses the dynamics and challenges of working as part of an arbitral tribunal, to fairly and efficiently resolve the dispute referred to you by the arbitrating parties. It is key that a three-member tribunal works as a team, in a collaborative and collegiate way, while preserving each arbitrator's independent judgment. As a newer arbitrator, with comparatively little experience, it is important to understand how to resolve challenging situations that may arise and threaten to disrupt the internal workings of the tribunal, whether through a misunderstanding among the tribunal members or through something more pernicious. The article considers the importance of these soft skills, as well as potential avenues of recourse, including through institutional rules.

For information on obtaining appointments as a new or aspiring arbitrator and how to run an arbitration, see Checklists, Obtaining appointments as an arbitrator and How to run an arbitration: an arbitrator's guide.

For many arbitration practitioners, the moment you are first appointed to act as arbitrator is a momentous one and the culmination of many years of hard work. However, despite all the training, education and practical experience one can obtain in advance of that first appointment, it is hard to be truly prepared for one's first experience of navigating the dynamics of being part of a three-member tribunal and this will only be heightened in the context of a difficult case, where the arbitrators may not disagree on aspects of procedure, practice, substance or all of the above.

Over the course of their careers, everyone will pick up strategies from experience and informal discussions with trusted colleagues. However, these techniques will often, and necessarily, be gathered in the abstract. Despite the crucial importance, these so-called "soft skills" of how to manage and negotiate the different people, personalities, egos, cultural and legal differences are in fact hard skills to master. Indeed, open discussion of them is all too often seen as taboo subjects, meaning that they are talked about behind closed doors, presenting a challenge for newer arbitrators and creating another barrier to increasing diversity in the field.

A spectrum of challenges

When one considers the composition of arbitral tribunals from perspective of a newer, or less experienced, arbitrator, they can be categorised in a number of ways, ranging collaborative and collegiate, through to challenging. At the challenging end of the spectrum, there are various reasons why one might find the experience of working with one's fellow arbitrators difficult.

It could be as simple as being the odd one out, for example because you are the only arbitrator from your particular legal tradition (common or civil law), the only person or a particular gender or culture, or the only one working in their second language. Equally, it could be that the other two tribunal members already knew each other or may have sat together previously Knowing...