Arbitrators can wear many hats. Sometimes they can even
pop on a mediator's hat. But what happens when they swap hats
back and forth? Does the fedora mean they've started
arbitrating again and that we are all okay with that or do they
just have bad fashion sense? If only there was a way to be
sure...
Enter the decision of the Supreme Court of NSW earlier this
month. The story starts off simply. A council and a
construction company get into a dispute over payment and head to
arbitration. Fast forward to lunch time on the last day of a twelve
day hearing when the arbitrator suddenly says 'How about I pop
on my mediator hat then we all break away and talk
settlement'.
Classic Arb, Med. Domestic arbitration legislation allows an
arbitrator to switch to mediator if that is what the parties want.
In fact, a recent global review by the International Mediation
Institute found that parties want more "mixed mode dispute
resolution" rather than just adversarial processes.
