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Principled-Arbitration and Amiable Composition

An excerpt from the report by RP Birt and Robert Watts  [ complete text ]

Principled-Arbitration

The notion of “Principled-Arbitration” was born out of the question “what if?”

What if… the processes of Mediation and Determination (Adjudication) were reversed and the parties were to work out the conflict based on: 

(a)  A set of principles and rules that were to be determined by the parties through the development of a “conflict resolution protocol” and “resolution contract”.

(b) Present and represent the facts and situation in a non-adversarial and collaborative manor to an impartial third-party neural.

(c)  Use the existing forms of International Arbitration that are agreed to through the New York Convention and UNCITRAL as the rules for the procedure.

(d)  Grant the Neutral the role and powers of Amiable Compositeur and include the role of Natural Equity in the Protocols.

(e)  After the determination was made by a Neutral acting as an Amiable Compositeur, there would be a second phase lead by another neutral (perhaps the neutral that helped conciliate/facilitate the Resolution Protocol) to mediate how the determination was to be implemented and enforced, along with the voluntary binding of the parties into an agreement that could be upheld in a court of law.

Canada is a signatory to international arbitration conventions. It has legislation that governs commercial arbitration within Canada as well as internationally. Each of the Provinces has their own set of laws for international and domestic arbitration.  Community-Based Conflict Resolution assumes that we live in a multi-cultural and global society. The field of International Arbitration, in dealing with commercial disputes, accounts for the differences in custom, culture and law by having a set of rules that gives consideration to what is just and fair as well as to the law that concerns the contract. 

As Canada becomes increasingly more multi-cultural, it is logical that conflict resolution processes must bridge and connect diverse custom and value sets with the same purposes that international commerce have created in Arbitration. This is the case for looking at the commercial rules of Arbitration and applying them to domestic conflict resolution. Including, the role of the Amiable Compositeur and ex aequo et bono, Latin for "in justice and fairness" something to be decided is decided by principles of what is fair and just. 

Arbitration  

Arbitration has long been seen as one of the corner stones for ADR. At one time it was seen as the only alternative to the court system. Many former or retired judges became arbitrators and much of its usage was legislated in labour and commercial regulations and law.  Mediation is really a “new kid on the block” and its role as something other than a “fixer”, has expanded only in the last couple of decades.   

Arbitration proceedings can be very formal and as adversarial as any court process. It is in its portability and expediency, as well as potential cost savings, that it has gained so much favor. 

On the face of it, Arbitration would not seem to be a good process for the resolution of conflict.

It does however present an interesting aspect…that parties involved in conflict can determine

the rules and procedures as part of the “Arbitration Agreement”, and have ownership over the rules which govern the process.  

Amiable Composition… Principled-Arbitration… Principles and Rules

Principled Arbitration is not meant to be “arbitrary”. While the “determination” may be made

by a Neutral in the role of “Amiable Compositor”, it is not in isolation or “ad hoc”, it is mandated under the terms of the “Resolution Protocol” which respects the values and agreements of the participants. 

The introduction of the term “Determination” is an alternative to “Adjudication”. In essence, “Determination” is based on the agreement of the parties as to what is fair and true. It is in “the moment” and while it may be based on precedent values or tradition, the primary objective is to bring closure, so that there is a starting point for “moving forward”. It brings closure to a cycle of conflict and then seeks to mediate the outcome.  

The foundation for the prefix “Principled” in “Principled Arbitration” is the set principles and values contained in the appendix. In addition, the “Principles of Neutrality” articulated in “Becoming a Third-Party Neutral” are guidelines for Process Leaders. Additionally, what differentiates this form of Arbitration is the additional emphasis on “Natural Equity”. 

Application and Appropriateness  

There are two primary applications for Principled-Arbitration: (a) Multi-Party Disputes involving similar issues which have not been addressed because of the enormity of the task and (b) Conflict Resolution Processes (Individuals or multi-parties) that are “stuck” because of a legacy-based or Identity-based conflict, where trust has broken down and parties are seeking ways to get off of the “merry-go-round” of blame. 

The first is dealing with large backlogs of issues or disputes which have a central theme or “type” but with differing circumstances. To individually apply mediation to each of these cases may require a time frame that is overwhelming and in some ways repetitious. To arbitrarily settle them based on a formula or guidelines risks the alienation of the parties who may feel that they have not been validated and have been “dictated to”. This is most volatile when working with people who have experienced a legacy of disempowerment, real or perceived. At the same time there may be a sincere desire to get things settled and to ”move on” especially if the process is seen to be “fair and just”.  

It is possible to identify a “group” of people involved in similar disputes and to gather a random selection of these people for a “protocol process” and to invite the participation from other stakeholder groups to create the “procedures” and “rules” for the determination of individual claims by an Amiable Compositeur.  

Once the protocol and process are determined, people are then asked if they are prepared to voluntarily participate in the process and accept the “determination” as a settlement of their dispute.  

This process addresses the issue of how to give a voice to the parties and at the time builds a “learning curve” around the issues to help determine “equity”. 

The second application is more difficult to encapsulate. It is in essence about “role” and “timing”…in dealing with the expectations of the parties and the point when the Principled-Arbitration Process is introduced.  

The role of Amiable Compositeur is not limited to the process of Principled-Arbitration. There are many instances where someone is asked to serve “in the interests of “fairness and justice” in both formal and informal settings. What is of concern are; “role shifts” where “determinations” become an avoidance of good Mediation Practices and the imposition of settlements, especially in situations where there is a power imbalance. 

As a multi-cycled, principle-based and collaborative process, the Principled-Arbitration Process combined with the Protocol Process, responds to the goal of resolving conflict, by continuing post-determination to give the parties an opportunity to create a new legacy to replace the negative one. 

Post Determination Process and Agreements 

The Post-Determination Process would begin with questions and end with an understanding committed to by all parties to bind the “Outcome” as either a “Question of Honour” or as a formal legal contract.  

The questions and issues that arise in a Society which is “Rights-Based” and subject to the “Rule of Law” have filled many libraries and continue to occupy the energy of many people as they are revisited daily. As someone once put it “If laws were all written in stone, we would have more quarries and less Court’s”… rights need to be respected but they are not the only element in the equation of conflict.  This is always an open question in conflict resolution. 

One of the central questions after “How did it go?” is “Where do we go from here?” and “How can we make this determination sustainable?” These questions center on the commitment of the parties and their commitment to the agreement. It also opens the door to possible refinements to the agreement which are generated by the parties.  

If value can be added or new options explored, it has the potentiality of new understandings.  

Awards and Confidentiality: Issues in the public interest 

The condition of confidentiality becomes increasingly more complex when there are issues that involve the “Public Interest” and “Determinations” which might constitute a “Case Precedent” if they were to be adjudicated by a Court of Law.

At the same time, many of the underlying conflicts and feelings which are surfaced in a conflict resolution process are matters that would either”: (a) have a good possibility of being suppressed if they were to be “aired” in public forum. (b) Are private and not a matter for the public and serve no interest (c) can serve to exacerbate negative feelings, if taken either out of context or  used as weapons in a conflict (d) are expressed in the “heat of the moment” and may be retracted or regretted afterwards. 

The issue of, awards and settlements being confidential, is another matter that requires more discussion and reflection. There is growing criticism of “mediated and confidential settlements” as being “cover-ups” and “manipulations” to avoid precedent or accountability. Non-disclosure agreements can be a barrier to trust and confidence in a process when there is a perception that people are being bought off or that there is not an equity of distribution.  

This is an area that requires more input and contemplation before a recommendation can be put forward.  

Institutionalization of the Rules and Panelists by an Independent Organization

Just as it is important for a Neutral or Amiable Compositeur to be seen as impartial in a process, it should follow that the Institution that is the custodian of the process, rules and panels, be equally independent and able to withstand the test of neutrality. The complication is as always, the source of funding and the conditions which are attached. It becomes further complicated with the selection of panels and the internecine rivalry that is part of any “professional discipline”….and the question of “who is going to certify the certifiers?” 

While there are a number of very competent and noteworthy institutions for Commercial Arbitration both domestically and internationally, it would difficult to find one that has experience in Community-Based Conflict Resolution. At the same time, there is a wealth of experience in Arbitration that can be drawn upon to build the foundation and methodologies in the context of CBCR. 

The identification of potential “Amiable Compositeurs” begins with the question, “What is it about a conflict resolution process that makes it trustworthy?” and “What makes you trust a conflict resolution process leader?” These questions were asked at the “Brantford Gathering” which provided very valuable input into the identification process.  These questions have lead to others which will evolve into even more.  

Summary 

A form of Arbitration may seem like an unlikely process for conflict resolution, especially when it is applied outside the System of Justice. As a means for “determination” it has a role. When it is modified, it has the potential to complete a “tool box” filled with other foundational processes for resolving conflict. It is by no means the “ultimate solution” but a step in a process. One that can help bring closure and healing for parties and communities in conflict.