From: Jussi-Ville Heiskanen
Me too. As does the whole discussion of whether
arbitrators should have a remit which includes content of articles.
I think this highlights the fact that the missing third
wheel of the mediation/arbitration pair is Expert Determination.
I think Alex756 briefly mentioned this in a much
earlier discussion, but it got lost in the volume of discussion about arbitration and
>mediation, which are slightly better known by most folks. So, Alex756, would you like
to recap?
Arbitrators make decisions based upon a dispute. Sometimes this dispute is based upon
facts, or relationships between facts (we often call that law, rules) or relationships
between rules (adjectival dispute resolution). There are facts that are readily
determinable through such activities as reviewing documents, listening to the testimony of
individuals (I was there, I saw what happened) or through an expert. I am assuming that
this is what you are interested in. Such experts make reports. It is true that experts
may have differing opinions, thus several experts (representing each position in a
dispute) may tender their reports and opinions. True the arbiters may make the final
decisions ( these may be judge like or jury like, or a combination of those roles) but
their decisions must bear some reasonable relationship to the generally accepted
methodologies of the experts. Or they could make a reference to such experts, or a panel
thereof and that panel could make a determination based upon their generally recognized
expert qualifications ir the arbiters could appoint an expert and ask for a report. Such
report may be questioned by the various parties to the arbitration (they are not
litigants, arbitration is basically a contractual relationship, not one that is state
imposed) and some type of appeal to the arbitrators may be possible if the experts make a
determination that can be shown to disregard the decision making process of their
expertise. There are really many ways in which arbitration and the determination of
experts can interact. Does that help, Cimon?
Alex