The Dispute Review Board Foundation has sent me a certificate of appreciation, for being a member of the DRBF for more than 10 years, which is thoughtful of them. Actually, I think it is quite a bit more than 10 years!

And I see, with great pleasure, that my old friend, co-author and partner in the London firm that I founded (Fenwick Elliott LLP), Jeremy Glover, is on course to become the new President-elect of the DRBF. An excellent Continue reading

Beware the Bot in The Law

A friend of mine, who now lives in Spain and who has a wicked sense of humour, tells me that he asked Chat GPT this question:

“Has Robert Fenwick Elliott written any good books? “

The answer that he got is that I am a well known author and expert in construction law and that I am highly regarded in this field, and that my books are widely used and respected.

Well, nothing controversial there, you might think. But the wind rather goes out of these sails when one looks at the detail. What Chat GPT actually said is Continue reading

Tribal Warfare in Litigation and Arbitration

There was an interesting and useful breakfast meeting of the DRBF this morning chaired by the indefatigable Ron Finlay in Sydney.  It was mostly about dispute avoidance techniques in DABs, but at the end we had a brief discussion about tribalism: the process in which litigation teams in major litigation or arbitration tend to form societal units, with their own loyalties, methods and objectives.

I have long thought that tribalism in major litigation or arbitration is a hugely powerful effect, and encouraged by Kiri Parr from Brisbane, am here offering some observations about it.

One impact is that it renders the “independent” concept of expert witnesses almost entirely meaningless. This is partly because he who pays the piper calls the tune, but also because expert witnesses who get heavily involved in a major piece of litigation or arbitration typically become part of the tribe, consisting of counsel, solicitors, in-house legal and commercial people on any one side. This tribalism is not dissimilar, it seems to me, from what happens in traditional warfare, and which is maximised by organising infantry into groups (companies) of about 20 soldiers. It is in groups of that size that tribal loyalty seems to be that its strongest. And that size is, roughly, the size of a litigation team in a major dispute (including counsel, solicitors, experts, in-house legal and the commercial people). When an expert witness becomes sufficiently embedded into litigation team, the opinions of that witness typically become a secondary tier of advocacy.  The expert might not, like a soldier, be prepared to risk his life for other members of his company, but the psychological pressure to support the team as best as possible is huge.

Another less widely recognised impact is that the tribe often becomes resistant to settlement of the dispute, because that settlement means the dissolution of the tribe. For sure, “best for tribe” usually outweighs “best for project”, and often outweighs “best for own party”. In part, of course, this is because Continue reading