by Martin Burns RICS, Head of ADR Research and Development
Many parties involved in disputes use arbitration, mediation, adjudication and other procedures as alternatives to the judicial system. They do so because they consider these procedures to be faster, cheaper, private or less formal than litigation, or a combination of these reasons.
Ideally, an independent dispute resolver should be appointed by agreement following discussions between the parties. In reality, parties are often unable to agree on the identity of the person to be appointed, and will obtain an appointment through an institution such as RICS. Whether appointed by agreement or through a dispute appointments service provider, parties will require their dispute resolver to have certain skills, knowledge and experience. It follows that the success of dispute resolution depends on the people who are appointed to undertake the role of dispute resolver being properly trained and skilled.
People who regularly work as dispute resolvers are often drawn from professions such as lawyers, surveyors, architects, engineers. They have knowledge and experience in their specialist areas of professional practice. Being an expert in contract interpretation, property management, building design or another specialism does not, however, mean that someone is automatically skilled as a dispute resolver. Someone who wants to be an arbitrator needs to learn about the law and practice of arbitration. An adjudicator is required to know the contractual and regulatory requirements of adjudication. A mediator must be skilled in a range of techniques and methods that this specialist role entails.
A significant part of my work at RICS over the past 27 years has been concerned with developing and delivering training programmes for chartered surveyors, and other professionals, in a wide variety of dispute resolution procedures. Over the years I have seen the standard and sophistication of training improve immensely. I have also seen increased rigour being attached to assessments and interviews, which bodies like RICS apply when recruiting dispute resolvers to their panels. Assessments are typically set up to be realistic tests of someone’s practical ability to discharge the role of dispute resolver in real-life.
Dispute resolution law and practice are constantly evolving. Once trained, dispute resolvers should be subject to routine performance monitoring and regular reassessments to ensure they continually do the job skilfully and act professionally.
The constantly developing nature of dispute resolution means that any dispute resolver who fails to keep on top of changes to legislation, case law and emerging trends in the practical application of their role, will sooner, rather than later, struggle to discharge the role effectively. They will make errors which will reflect badly on them, and their professional bodies. Complaints may be made to the body which appointed them about their ability to do the job. Worse-case scenario, they might even find themselves removed from a panel. Even if no complaints are made, a dispute resolver who fails to attend on-going training may fall foul of the criteria for membership of a professional body’s panel.
Aspiring dispute resolvers can obtain training and credible qualifications from a range of organisations. Formal qualifications signal that someone understands the law, practice and procedures required of the role, and can apply themselves practically.
In the 1990s RICS required arbitrators on its commercial and construction panels to undertake training and assessment that covered 4 days in total. Today, RICS arbitrators who aspire to be on the Dispute Resolution Service (DRS) panel are required to successfully complete a distance learned diploma in arbitration that takes 18 months to complete. Construction adjudicators follow a similar training programme. RICS mediators need to complete a sixday programme of training and assessment that complies with Civil Mediation Council criteria.
From the perspective of parties, the most important feature they look for in their dispute resolver is impartiality. In some dispute resolution methodologies, such as in arbitration, there is a statutory requirement for the dispute resolver to be unbiased. In mediation, it is expected that a mediator will help parties find a settlement without favouritism towards one side or the other. In recent years, cases such as Eurocom v Siemens and Cofely v Bingham have brought into sharp focus how proactive dispute resolvers must be in demonstrating their independence and objectivity. More than ever, they must consider current and past involvements with parties and professional representatives, and know when it is not appropriate to accept an appointment. It follows that training and assessment programmes must include meaningful schooling in the legal tests for bias, and dispute resolvers need to know what they should do in terms of investigating and disclosing potential
The current challenge for RICS and other appointing bodies is to provide experienced dispute resolvers with up to date training and development that tests them. Training for experienced practitioners needs to help them deal with thought-provoking problems which inevitably arise when acting as arbitrator, mediator, etc. Much of the training that is currently on offer by training organisations appears to be designed merely to impart knowledge, e.g. on law and procedure. A lot of training being offered is clearly not innovative enough for qualified and experienced practitioners. It rarely focuses on practical competencies, which dispute resolvers need to help them deal with issues they encounter in real-life disputes.
At RICS, we are seeing increasing demands for training that is more forward-thinking and focussed on practical skills. Dispute resolvers on RICS panels of arbitrators, mediators, etc, appear to want more than mere revision on subjects such as the law of evidence. What if, instead of regurgitating the main points in the Civil Evidence Act 1995, or reminding dispute resolvers about the meaning of burden and standard of proof, training workshops taught them what they should do with evidence once they have it in their hands? Even the most experienced dispute resolvers benefit from practical competency based training that concentrates on how to deal with potentially difficult problems.
Organisations like RICS are responsible for ensuring the dispute resolvers they appoint are independent and qualified to deal with the matter in hand. RICS requires panel members to complete 20 hours CPD relevant to their dispute resolution work, over and above the 20-hour requirement chartered surveyors are normally required to do under RICS rules. This amounts to 40 hours CPD per year.
I am constantly amazed by the numbers of people who want to be dispute resolvers. It is, no doubt, an intellectually challenging and fulfilling area of work for professionals, which takes them out of the comfort zone of their normal jobs.
What amazes me is that dispute resolvers are happy to submit to substantial scrutiny from multiple participants. Both parties to a dispute, their professional
representatives and sometimes lawyers and the courts expect dispute resolvers to perform to exceptionally high standards, all the time. Even the most experienced dispute resolvers cannot be complacent and should endeavour to keep ahead through regular ongoing training. Appointment service providers, like RICS, have a duty to ensure dispute resolvers on their panels maintain their formal qualifications and remain proficient. It follows that service providers should endeavour to ensure dispute resolvers have ongoing access to practical, competency based training of the highest level.