David Bartos advocate, Edinburgh, Scotland

• What is an arbiter ?
• Is an arbiter like a mediator ?
• Is an arbiter’s decision binding ?
• Why choose arbitration ?
• Is there a right of appeal ?
• What type of dispute can an arbiter decide ?
• How much does an arbiter cost ?
• Does an arbiter have to appoint a clerk ?
• What are an arbiter’s qualifications ?
• What are your standards of service ?

What is an arbiter ?

Essentially he is a private judge who resolves the dispute that the parties have referred to him. Like any judge or sheriff he must apply the law in resolving the dispute and must decide in favour of one party or the other.

In England, and internationally in the English speaking world (apart from Scotland) an arbiter is known as a “arbitrator”.

Is an arbiter like a mediator ?

The job of a mediator is to find common ground between disputing parties and encourage them to settle. A mediator is not there to decide the rights and wrongs of a dispute.

By contrast an arbiter’s job is to decide the rights and wrongs of a dispute.

Is an arbiter’s decision binding ?

Apart from a few exceptions, it is binding on both parties and can be enforced.

Why choose arbitration ?

• Specialist decision-making        the arbiter should be someone who is already knowledgeable in the area of dispute. By contrast in court the identity of a sheriff or judge may not be known until years into the dispute and he or she will be a generalist and may not be knowledgeable or up to date in the area of law in question.

• Speed     a dispute can be decided within a fixed time limit, unlike most court procedures. Win or lose closure closure can be achieved quicker.
• Flexibility of procedure    There is no need to keep to rigid court procedures and formal pleadings. Expensive hearings can be kept to a minimum. Parties can agree to a documents only arbitration or one with limited hearing of witnesses. Disputed issues can be focused at an early stage.
• Flexibility of representation     parties need not have legal representation
• Informality     a dispute can be heard at suitable premises anywhere
• Cost        all of the above can reduce costs
• Confidentiality and privacy        provided both parties agree, with some exceptions.

Is there a right of appeal ?

There is no right of appeal. Appeal procedures prolong the duration and expense of a dispute. One of the attractions of arbitration is that it is designed to be final and thereby prevent a dispute from dragging on and costing more.

What type of dispute can an arbiter decide ?

An arbiter can decide almost any type of dispute which is not a criminal or administrative matter.

I am available to act as an arbiter in any dispute particularly in relation to property, wills and inheritance matters and also commercial disputes.

How much does an arbiter cost ?

This is a matter for negotiation. What I will charge depends on the nature and complexity of the work and the time taken up by it. The idea is that the fee will be reasonable taking those factors into account. The fee is agreed in advance.

Does an arbiter have to appoint a clerk ?

There is a power for an arbiter to appoint a clerk to assist him with the administration of the dispute resolution process e.g. to store and send out documents. However it is not necessary to have a clerk, particularly if the arbiter is himself legally qualified.

Normally, I will not appoint a clerk. This makes the arbitration more cost-effective. If I thought that a clerk was necessary e.g. because of an exceptional number of documents, I would let you know at the time of appointment. 

What are an arbiter’s qualifications ?

No formal qualifications are strictly speaking necessary. That said most practicing arbiters hold Membership or Fellowship of the Chartered Institute of Arbitrators. The Chartered Institute exists to promote and facilitate the decision of disputes by arbitration and other non-court processes. It has many thousands of members throughout the world and a Scottish Branch.

For the qualification of Fellowship (F.C.I. Arb.)) one has to attend and pass a training course, sit and pass an award writing examination (pass mark 70%) and pass a peer interview. The emphasis throughout is on fairness, thoroughness and expedition of and within an arbitration in order to achieve the best quality of justice.

What are your standards of service ?

I follow Part 3 of the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct (September 2004).