Requirements of Efficient Arbitrators/ Mediators/Conciliators | Overview
This article discusses the requirements of efficient arbitrators /mediators/conciliators. Arbitrators, Conciliators, Mediators have a very important role to play in the resolution of disputes in out-of-court resolution techniques. They act as moderators and are expected to have few characteristics.
They cannot be entirely compared to that of judges in adjudication but certain characteristics of judges are similar to that of the adjudicator/mediator/conciliators. The following are the essential requirements that every adjudicator/mediator/conciliator should possess.
One of the most important qualities to the harbour for success in being an adjudicator/mediator/conciliator is compassion. Parties choose out of court settlement because they agree to the advantages that ADR has over adjudication. They expect that the process of the settlement will be informal and amicable giving them the scope to deliberate and discuss. The role of the moderator is of utmost importance.
The moderator has to be an intrinsically good person. He should not be profit minded and should genuinely try to solve the problem between the parties. He should be compassionate and make the parties feel comfortable. The parties should be comfortable enough to openly discuss any issue in front of him.
Qualification is essential for competency in decision making. Qualification differs from place to place and from time to time. For some people qualified means a person who is theoretically well versed with the guidelines and has experience enough to implement these in the procedure. On the other hand qualification for some may also mean having the practical know-how of the techniques and the manner in which the process is to be moderated. Since ADR is a party-based process, the parties elect the person who can preside over the process.
The parties tend to choose a person not only by his academic qualifications but also by the word of mouth. Word of mouth is a potent factor and is much more powerful than any other factor influencing the choice of the parties.
One of the most important qualifications of an adjudicator/mediator/conciliator is the experience. The parties tend to select those with remarkable experience in the field. Experience far exceeds academic qualifications. Being an adjudicator/mediator/conciliator is similar to being a judge.
The out-of-court dispute resolution requires an intricate understanding of the nature of ADR. The approach adopted by the presiding authority changes in the case of ADR because of the private setting and the importance given to the parties.
An adjudicator/mediator/conciliator has to be understanding. There may arise instances where the parties are not willing to share their information which is essential to the advancement of the procedure. In such situations, it is essential not to be judgmental and allow the parties to open up subsequently.
An understanding of adjudicator/mediator/conciliator would ensure that parties are not pressurized or forced to reveal information. The adjudicator/mediator/conciliator ensures that natural justice is maintained.
An adjudicator/mediator/conciliator should act as a counsellor to reduce the tensions prevailing in between the parties. Often, in a dispute, the only impediment preventing the successful resolution of a dispute is the egoistic attitude with which parties deal with one another. The sole job of the moderator would then be to act as a counsellor when he thinks it fit for ameliorating any bitter relations thriving between the parties.
As a counsellor, the adjudicator/mediator/conciliator can also suggest the person where the fault actually lies. One of the major advantages of ADR is the preservation of cordial relations even after the resolution of a dispute. An adjudicator/mediator/conciliator as a counsellor can reunite the relations by ensuring that further frictions should be ignored.
The adjudicator/mediator/conciliator has to be objective in his approach. The sole reason for this is the fact that personal biases should be prevented while deciding or advising the parties. A bane and boon in ADR are that statutory laws are not applicable for regulating the procedure. There may be guidelines to enhance the quality of the outcome but the power to decide over the intricacies of the procedure is given to the parties.
In the absence of genuine legal principals, the moderator has to prevent himself from producing biased judgments. Objectivity is such an essential requirement in an ADR process that while a selection of the adjudicator/mediator/conciliator the parties are careful not to select from the same cultural/ religious/ social background.
In the process of discussions and deliberations, instances may occur where the parties openly insult one another and indulge in verbal battle. At times certain situations can lead to an impasse, walk-out, vociferous intending to insult may ruin the objective of a peaceful settlement. The adjudicator/mediator/conciliator has to be patient and ensure that firstly, such situations do not arise in the procedure and secondly, if such situations arise, that it does not hamper the process of settlement.
A patient adjudicator/mediator/conciliator will understand the dynamics of relationships between the parties and tries to mend it.
The moderator has to understand the objective of the process of ADR which is an amicable settlement. It is impossible for a restless moderator to resolve the dispute at hand. The parties should be given time to open up and get comfortable. Patience ensures the smooth functioning of the process of ADR.
In the process of ADR, it is very easy to lose one’s temperament either because the parties are not in the same agreement or whether the parties are constantly indulging in verbal abuses with one another. Either way, it is important for an adjudicator/mediator/conciliator to maintain a composed behaviour for ensuring a set of mutual trust and comfort.
There may arise situations wherein the moderator feels that one of the parts is being insensitive and not accepting a clause merely because of ego. It is very easy to lose one’s temper but it is equally difficult to stay calm and manage the situation at hand with utmost diligence.
One of the most essential pre-requisites of an adjudicator/mediator/conciliator is impartiality. As discussed above biases and partiality of the moderator vitiates the entire objective behind the process of Alternative dispute resolution. While facilitating dialogue and discussion it is very easy to suggest subjective arguments on a particular topic.
The implication of such a suggestion would be destructive because the moderator is considered to be a neutral third party. Any suggestion on his behalf would entire complete impartiality and has an influencing power on the party to which it is suggested to.
Some of the institutions of the world like the CIArb have the provision of licensing arbitrators. The present Amendment to the Arbitration and Conciliation Act also has the provision for the preparation of a ranked list of arbitrators maintained by ACI. Lists and Ranks help the parties to realize the genuine arbitrators who are both experienced and qualified enough to ensure that the proceeding is enacted in the proper way.
The parties choose adjudicators/mediators/conciliators and they expect a certain level of trust. The parties are bound to reveal confidential information in the procedure. The parties are sharing CI solely because they trust the moderator. This information is to be protected. The moderator is bound not to disseminate the information collected during the process.
Another prong of trust-worthiness is the fact that the parties believe in the advice and suggestion given by the moderators because of the quality of them being educated and qualified to understand the consequences of the act. It becomes the responsibility of the moderator to weigh every word and ensure that there are no loop-holes in the suggestion. The moderator has to ensure that the suggestion is free from biases.
The adjudicator/mediator/conciliator has to maintain discipline and show dedication to resolving the dispute between the parties. The moderator has to be punctual thus scheduling dates for proceedings before-hand and ensuring that the process perfectly fits the range of time allotted to it. One of the most important aspects of ADR is its short time required for the completion of the procedure. The moderator has to adhere to this principle and ensure that the ultimate objective is fulfilled within the correct time.
The parties in a dispute will be antagonistic and will continuously argue with one another. It is then a requirement for the adjudicator/mediator/conciliator to be optimistic about the fact that there will emerge an amicable settlement of disputes. The thought process exhibited by the moderator will be the guiding factor for the parties.
The behaviour of the moderator will show in the process. ADR enshrines optimism. The optimism of resolution of disputes through dialogue, optimism of preservation of amicable relationships and optimism over the successful resolution of disputes. If the setting is optimistic, the process will culminate in an optimistic ending.