Law: Alternative to the courtroom: Sharon Wallach talks to Bruce Harris, of the Chartered Institute of

Sharon Wallach
Thursday 08 July 1993 23:02

IT IS about time that the person in the street realised that arbitration is a comparatively inexpensive, simple and accessible alternative to the courts procedure, says Bruce Harris, who at 48 is the youngest-ever chairman of the Chartered Institute of Arbitrators.

'I see arbitration generally as providing a viable alternative to a legal system that is getting increasingly weighty, bogged down, slow and expensive,' Mr Harris says.

Even lawyers appreciate that there must be something better, he believes. 'I think arbitration is the alternative. Sadly, it is not seen that way by everyone, and that is something we hope to change through the institute.'

One advantage arbitration has over other forms of alternative dispute resolution (ADR) is that the decision of the arbitrator is binding and enforceable. Another is its flexibility. 'As an arbitrator I am not bound by any particular rules of procedure, so long as I act fairly and judicially as between the parties,' Mr Harris explains.

When arbitration is properly conducted, with full use made of its flexibility, it can save time and therefore money. A counter-factor is that the arbitrator has to be paid, but efficiently conducted arbitration can still save a great deal - the total work involved for the parties and their representatives is a great deal less than in a court case.

'If you go through the courts, you have to exchange pleadings and lists of documents as part of the process of discovery, then there is the oral hearing,' Mr Harris says.

Through arbitration, the parties can, in an urgent case, be heard and an award made within a day of the problem arising. Around 80 per cent of Mr Harris's work is based on written submissions and documents only, without the need for an actual hearing. Arbitration is without doubt an expanding field, growing not only out of the recession but also out of pressure on the legal system.

'It is possible,' Mr Harris says, 'that the arbitration used by county courts to resolve small claims disputes will be farmed out to the private sector. At present, we don't know how far that will go, but it is something on which the institute has been campaigning. It would certainly help take pressure off the courts.'

Arbitration is private and only becomes a matter of public record if a decision has to be enforced through the courts, or in the rare instance of an appeal. (Arbitration carries no automatic right of appeal; leave to appeal may be granted only if the judge can be persuaded that the arbitration is wrong in law, which is a remote possibility.)

Arbitration has been used traditionally by the construction, shipping and commodity trading industries. But its application is by no means exclusively commercial. The institute runs a series of consumer schemes for industries including travel and double glazing, and the institute's 7,200 members in 84 countries are drawn from all backgrounds.

'Almost anyone' can be an arbitrator, says Mr Harris. The common thread is a good track record or fellowship of the institute, and a substantial connection with a particular type of business - a maritime arbitrator may be, for example, a mariner, a shipbroker or a shipping lawyer.

Mr Harris's own involvement in maritime law was accidental, he says. A holiday job with a firm of City solicitors lasted 10 years, during which he ran his own shipping litigation and arbitration caseload. He moved to a job with liability insurers and began to build up a part-time arbitration practice. He became a fellow of the institute in 1979 and the following year took up practice as a full-time arbitrator, a rare breed in this country.

His aims for his year as chairman are threefold: first, to make the public as aware as possible of the benefits of arbitration. 'Arbitration is a very positive tool, that can be used increasingly in today's climate if only people knew about it,' he says. 'It is so much more informal and speedy, and those who go through the process are usually satisfied.

'Secondly, the institute's role across the world is already substantial, but given that it is the only one of its kind - it is the only body that seeks to train and examine arbitrators to any great extent - we can capitalise on that,' he says.

'Above all - and this will be the theme of our AGM in the autumn - I want to make lawyers ultra-aware that arbitration is not bound by court rules. As arbitrators our hands are not tied, and by seeking to tie them (by attempting to resort to the familiarity of court rules) lawyers are doing themselves and the arbitrators a disservice.'

Do lawyers see arbitration as taking food from their mouths? Not at all, says Mr Harris. Arbitration can be approached without referral by a lawyer, but in the larger and more complicated cases, lawyers have a serious role to play. 'The problem is that by and large, lawyers don't know about arbitration,' he says. 'Until this year, there has never been any compulsory tuition on the subject, either for barristers or solicitors. And like the rest of us, they fear what is unknown.'

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

View comments