Is Arbitration Redundant? Pt.2
Some decades ago, experienced arbitrators were inclined to be dismissive of Alternative Dispute Resolution, taking the rather lofty and far fetched view that whilst it would no doubt work well enough in family disputes it was relatively quite unsuited to disputes of a fundamentally commercial nature and character. That particular view has now proven to be erroneous and incorrect in a way because the use and popularity across the world of Alternative Dispute Resolution mechanisms and measures have steadily been on the rise. Alternative Dispute Resolution methods and mechanisms are relatively much quicker as well as more feasible in the monetary and economic sense as well, genuine and well-intentioned attempts at Alternative Dispute Resolution have been proven to be conventionally successful, ending in some form of agreement. Besides, the fact that Alternative Dispute Resolution is not constrained by strict legal rights and regulations is also a massive plus point. It is able to facilitate even non-legal forms of relief, such as the offer to the aggrieved party of a substitute contract which would be unthinkable or unfathomable in a conventional arbitration proceeding or even the revival and resuscitation of a particular contract that has already been previously been terminated which would ultimately be almost impossible to justify on strictly legal principles and rules.
Lawyers also, on the whole, cannot be deemed to be blameless and abdicate responsibility for what has been termed in very pejorative terms the“judicialization” of arbitration. Mr. Fali S Nariman pointed out that in the incredibly acclaimed musical Fiddler on the Roof which had opened on Broadway in 1964 and is still apparently playing even after numerous decades, the folk hero Tevye the dairyman, who was dressed in rags and perpetually argued with God, is pressed to give a blessing for the Czar. “A blessing of sorts for the Czar”? he questioned mournfully. Almost suddenly then his eyes then lit up and he stated that:” May the Lord bless and keep the Czar away from us!”. At the moment, the firm belief and opinion amongst users, as well as practitioners of Alternative Dispute Resolution mechanisms, is that the further away the lawyer who is practicing in court at the time stays from the process of Alternative Dispute Resolution, the more the chances of a settlement. Mr. Nariman again recollected to the fact that long ago, while at an ICC seminar a senior legal advisor of the company Shell expressed his firm conviction to him that ADR was doomed to fail if it merely became a law firm activity and was seen to be merely associated with lawyers. Mr. Nariman subsequently stated that even though this observation of the senior legal advisor of Shell was appropriate and reasonably correct in its perception but incorrect in terms of appreciation of what should be the lawyer’s correct and appropriate role. The lawyer, according to Mr. Nariman who constantly practices in courts must get active as well as efficiently inappropriate and sufficient measures involved in the practice of Alternative Dispute Resolutions, and naturally the courts must provide help, as they appropriately do in the United Kingdom.
Source: Harmony Amidst Disharmony- Fali S Nariman