Arbitrations, Presenting your case?

As I have mentioned in earlier articles, many Members attending Arbitration hearings express that it is their first such experience.

While this speaks well of our profession, and our Members’ ability to sort out the inevitable conflicts that arise, sometimes innocently and not of their own making, it does surprise me how poorly some people prepare themselves.

This is particularly surprising given the amounts of money at stake. Amounts in excess of $10,000 are the norm with considerably larger amounts frequently involved.

If those Members were being sued by a member of the public for such amounts I suspect they would not venture near a Court without considerable legal assistance and preparation. Yet some attend hearings having hardly spoken to their own salespeople and sometimes hardly even knowing the circumstances or issues.

Other than that they are held in private and that the results are confidential to the parties, Arbitrations are little different from disputes resolved through the Courts. Legal representation is allowed. Witnesses can be called. Evidence can be given under oath. Awards are enforceable and have very limited possibilities of appeal. And, as in the Courts, it is primarily up to the parties, not the Arbitrator (or Judge), to present, argue and/or expose their respective cases.

While I personally do not wish to see legal representation become the norm at Arbitrations, there are some Members who should seriously consider getting assistance. The two areas that should be considered are firstly the development of the case. That is, identifying the issues and determining how to present or expose them. This may mean consulting with a lawyer/barrister or a senior Member of the Institute, many of whom know their real estate law and practice better than some members of the legal profession. And that is not trying to be smart; it just is a fact that some lawyers have little appreciation of our legislation, Rules, Code of Practise, Code of Ethics etc.

The second is the actual presentation of the case and there are three parts to this. They are 1) the presentation of the issues and facts, 2) the questions that may need to be asked, both of a person’s own witnesses and the other side, 3) a powerful and persuasive closing that summarises the key matters that may sway the Arbitrator.

Arbitrators are not mind readers. They make their decisions on the material and arguments presented to them, not the great case that the parties have tucked away in their minds, or the convincing evidence they have left in the office.

The purpose of attendance at a hearing is not to convince the other party, or to argue with them, but to convince the Arbitrator of the validity of their claim, or defence. This requires preparation and presentation.

There is little point attending a hearing with an excellent knowledge of the facts but without the ability to present them or extract them from the other party. While I cannot dispute that Arbitrators can get it wrong, as can any judge in Court, it is my belief that generally people who lose while genuinely believing they were right should firstly look at themselves and the case they presented.

Arbitration is an excellent, relatively informal and often quite friendly method of resolving a dispute. But it is also quite a serious matter when large amounts of money are at stake.

If the dispute justifies a hearing then it must surely follow that good preparation and presentation are a minimum requirement. Anybody in doubt about any aspect of the Arbitration process should seek advice including from the Arbitrator who can always discuss the process and procedures with the parties.

Michael Pinkney FREINZ AAMINZ
National Councillor
First Published Feb 2004