I have worked in arbitration as a barrister since joining the English Bar in 1980. I have received appointments to sit as an arbitrator since 1992. Many of the early arbitrations concerned the complex issues that arose in connection with the Lloyd's market. The remaining appointments are in contractual, commercial and shipping disputes. In the early 1990’s, when parties wished to appoint a legal arbitrator, they frequently did so outside any administered scheme. I saw the advantages of sitting as an arbitrator under an administered scheme with a well-drafted set of rules. I also perceived a need for a lawyer-arbitrator scheme for the business and professional community.

With the development of my experience, I became interested in the idea of forming an arbitration group. My idea was to introduce a new and innovative initiative giving businesses and the professions the opportunity to resolve their disputes, particularly in the banking, insurance and financial services sectors, by lawyer-arbitrators presently engaged in the field of the dispute and under an administered scheme, for the first time. The scheme was set up in the wake of the Arbitration Act 1996 with the intention of providing modern arbitration, and disposing of disputes more quickly than hitherto, at a reasonable cost. The Act is an enabling Act and the carefully drafted rules allow the flexibility required for good and fair arbitration, tailor-made to suit the dispute in question.

Arbitration has long been criticised for copying the formalities that exist in the Court system. This has traditionally given it a reputation for being both slow and expensive. I believe that arbitrations can be conducted speedily and at a reasonable cost and this is what ACI has set out to do.

The rules provide for a fixed fee arbitration and mediation scheme. This allows the parties to know the cost of the arbitration or mediation at the outset.

The Fixed Fee Arbitration Scheme is suitable for any case that can be heard within two days. It may include issues of fact requiring witnesses to be called and it may involve some technical issues requiring expert evidence. It is particularly suitable for confined points of construction or law, even in disputes which involve a substantial amount of money. ACI has set the arbitrators a target to complete fixed fee arbitrations within about 4 months of appointment in the absence of special circumstances.

Alongside the Fixed Fee Scheme, there is a Standard Arbitration Scheme. All cases that are too substantial to fall within the Fixed Fee Arbitration Scheme will be referred to this Scheme. I believe that the majority of standard arbitrations can also be completed within months rather than years. There is also a Fast Track Arbitration Scheme for cases that require to be heard and an Award published within days rather than months.

I started from the premise that good arbitration would stem from good arbitrators who are allowed to play a constructive role in the resolution of the dispute from an early stage. Traditional arbitration has suffered from the "hands-off" approach of the arbitrators.

Bringing an arbitration to the right conclusion without delay requires an early analysis of the issues followed by a flexible approach to the process depending upon what the facts of the case demand. This approach ensures that the parties' efforts are properly directed to the real issues in the dispute and that time and energy is not dissipated in periphery issues that will never be determinative of the case. All of the schemes proceed on the basis of an early Preliminary Meeting at which the arbitrator will help the parties to draw a list of issues in the dispute and give directions for the future conduct of the arbitration intended to bring the matter to a speedy and satisfactory conclusion.

ACI has a distinguished Panel of experienced lawyer-arbitrators, appointed for their sensible approach towards arbitration. Most importantly, ACI arbitrators will not adopt traditional arbitration procedures but will adopt a flexible approach giving the right directions for the proper and effective resolution of that dispute.

The appointment of a lawyer-arbitrator, especially one who is a specialist in the field of the dispute, ensures that the law is properly applied in the resolution of the dispute. Many of the senior arbitrators also sit as Deputy High Court Judges, so that it is possible to have a Judge to decide the dispute in arbitration. Alternatively parties can choose one of the younger silks or senior junior barristers (still with many years of experience in arbitration) from the lower fee bands.

Equally important in the philosophy of ACI is the fact that a lawyer who is presently actively engaged in a specialist field knows and understands the background to the dispute and is familiar with the modern instruments or other documentation in use. This substantially reduces the "learning curve" and avoids time-wasting (and costly) explanations at the hearing stage. It enables the arbitrator to focus at a very early stage on the best way forward for that particular dispute.

The ACI schemes are primarily set up to provide sole arbitrators. I believe that a sole arbitrator who is a specialist in the field concerned is adequate in most disputes and, obviously, less costly than a three-person tribunal. However, parties may wish to appoint an assessor to sit with the arbitrator or two party-appointed trade arbitrators in suitable cases. This can be done under the Standard Scheme. It enables the parties to have expertise on the tribunal, in a particular trade or other area, in suitable cases whilst retaining the lead of the legally qualified chairman and the direction of the ACI philosophy and rules.

The dispute may concern substantial issues of fact. ACI arbitrators are still able to determine these disputes, just as a judge would. It may also involve substantial technical disputes. ACI rules provide for tribunal-appointed experts. This will enable these disputes to be determined without the unnecessary expense of each party appointing their own expert. If parties wish to appoint their own experts they can do so under the Standard Scheme, but this will naturally make the arbitration more expensive.

Finally, I have brought my experience as a mediator to ACI in providing a sound mediation scheme. Any dispute proceeding by way of arbitration under ACI Rules can be stayed pending mediation if the parties' so wish. I qualified as a mediator in 1995 and have conducted a substantial number of mediations in the contractual and commercial field with an extremely high success rate. I believe that mediation has a lot to offer in suitable cases and I am pleased that ACI has a strong panel of experienced lawyer mediators. I believe that suitably trained and experienced lawyers, mediating in the field of their specialisation, are better able to help the parties settle their disputes. They can help the parties in identifying the issues and assessing the risks in the litigation. Most sophisticated commercial parties and their solicitors or other legal representatives now recognise the value that lawyer mediators give to the process and the consequently increased opportunities for a satisfactory resolution of commercial disputes.

Elizabeth Birch

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