Arbitration-part 1
In various of the recent footballer and football club related disputes there has been mention of arbitration or similar hearings. It is important to understand how arbitration fits with the court process.
Arbitration is a way of dealing with legal disputes without going to court. There are other ways which will be considered in later articles. It is important to bear in mind that arbitration is an agreement to resolve disputes privately. Such an agreement can be an arbitration agreement even if it does not use the word arbitration. The idea of arbitration is that an arbitrator (the name of the person who controls the arbitration) will make the decision rather than a judge. The arbitrator can be a person with legal qualifications or someone completely different. If it is a dispute about a property you might have a surveyor. If it is a dispute relating to a particular industry you might have someone experienced in that industry. Sometimes the provision will be for a panel of arbitrators and the arbitration agreement may specify what their particular qualifications are to be. The idea case that it is extremely flexible so that the parties can decide precisely how they want their dispute to be determined. Likewise, subject to certain duties to act fairly, the arbitrator has much greater flexibility over how the arbitration should proceed than would be the case with a court hearing.
Arbitration can also be a way of keeping disputes private. How private depends upon the nature of the agreement, but an arbitration hearing is not open to the general public in the way that a court hearing would be.
In theory arbitration cannot be forced on a party. There has to be an agreement that disputes will be arbitrated or dealt with in a particular fashion. That agreement can be one which is reached before the dispute arises, or it can be agreed afterwards. Thus if you have a legal dispute with another party, it is open to the parties to agree that that should go to arbitration (if that is what you prefer). Likewise you can agree in advance that certain types of dispute may be arbitrated, such as when you sign a contract.
The reason I say that "in theory" arbitration cannot be forced on a party is that whilst arbitration is voluntary, that might be something you have to agree to as part of other terms. For example, sports clubs maybe may be members of a league which requires any disputes between them or between them and the governing body to be dealt with in a particular way by way of arbitration. Although the club could refuse in theory, refusing would mean not signing up for the league. Therefore the "voluntary" decision to going to arbitration is brought about by the unpalatable alternative. The same might arise insofar as other types of contracts or associations provide for this.
In many types of business for all sorts of reasons arbitration proceedings might be quicker and cheaper and better than going to court. (For example having someone experienced in that particular business determining it). In a commercial context the court lean very strongly towards enforcing such agreements. Next week we will consider how.