The Pit or the Pendulum

PitandthePendulumThere are no prizes to be won for identifying that trial in a court of law is an appallingly inefficient way of deciding complex construction disputes. Although in theory more flexible, a conventional hearing in an arbitration is hardly any better, and some would say even worse.

In many cases, of course, it is possible to resolve disputes by some sort of intermediate process, either on a non-binding basis like mediation or review board, or on a “pay now, argue later” basis, such as adjudication. But sometimes, the dynamic between the parties is such that a binding and final determination is required. Is there an alternative to the full Monty?

Well there is, actually. It is pendulum arbitration. Or as the Americans sometimes call it, baseball arbitration. Or sometimes flip-flop arbitration. Or even, less obviously, a “last best offer” arbitration. Personally, I think the term “pendulum arbitration” is the most appropriate. It is not new[1]. But it is much faster and cheaper than conventional arbitration, but is just as binding.

Here is how it works. There is Continue reading

The Mediation Albatros

albatrosI was mediating last week, and am pleased to say that I was successful in resolving the dispute that had been referred to me.

I say “pleased” with some hesitation because I have a rather bizarre record which hangs a little like an albatross around my neck: I have never failed, as a mediator, to resolve the dispute before me. It is a somewhat bizarre record, as improbable as Continue reading