Arbitration and Mediation Procedure
The following procedure should be used for setting up a Bar Council arbitration or mediation.
1. The problem is presented to the Representation and Policy Department.
2. One party makes an informal request for the appointment of an arbitrator/mediator; the other party is invited to discuss the possibility. If it is agreed in principle that arbitration/mediation is possible the parties should indicate their preference.
3. The Head of the Representation and Policy Department, or his delegate will then issue to the party/parties standard forms whereby the parties request the Bar Council to appoint an arbitrator/mediator to resolve their dispute, brief particulars of which should be set out on the form. The form should indicate the agreement of the signatories to either arbitration or mediation. The form should be returned to the Bar Council as soon as possible.
4. In the event that arbitration has been chosen, the parties must agree to cooperate with, and abide by, the decision of the arbitrator(s). In the event that mediation has been chosen, the parties should agree to cooperate with the mediator and try to settle their differences.
5. On the return of the forms, an arbitrator/mediatior will be nominated from the standing panel(s) by the Head of the Representation and Policy Department or his delegate, and will be asked to confirm their availability to accept the reference and to indicate that they are not inhibited from so doing by prior knowledge of one or other of the parties.
6. If a barrister's clerk is involved, an arbitrator/mediatior will also be selected from the Institute of Barristers’ Clerks list. In such cases, the barrister arbitrator/mediatior will initiate the proceedings but will work in cooperation with his counterpart from the Institute of Barristers’ Clerks.
7. On receipt of the completed forms signed by every party to the dispute, the parties will be informed of the arbitrator/mediatior(s) selected and, provided that no objection is raised, the selected arbitrator/mediatior(s) will be informed that the parties have agreed to submit their dispute to their arbitration/mediation and also will be sent copies of the completed form signed by the parties.
8. In the event of arbitration, the arbitrators will follow the attached rules.
9. Once the parties have complied with the barrister arbitrator's directions, the future conduct of the arbitration will be under his control. The award should be published direct to the parties, with a confidential copy of the award to the Bar Council; the Institute of Barristers’ Clerks should also be sent a confidential copy for the purposes of information, in any arbitration relating to a barrister's clerk.
10. In the event of a mediation, the barrister conciliator will initiate whatever action he sees fit in conjunction, where appropriate, with his barristers’ clerk counterpart.
Mediators' Role
The mediatiors' role should be limited to the function of conciliation and of exploring the possibilities of an agreed solution to the dispute. They should be familiar with the relevant provisions of the Code of Conduct and of the guidance in Practice Management Standards and Guidelines, and should be able to point out to the parties, any apparent breaches of the Code, or relevant recommendations in Practice Management Standards and Guidelines which do not appear to have been followed.
The mediatiors will have no jurisdiction to impose a solution on the parties, but it is suggested that the fact that they have been asked to intervene on behalf of the Bar Council and, as appropriate, the Institute of Barristers’ Clerks would enable them, if the facts justified such a course, to bring appropriate persuasive pressure to bear on an unreasonable party to remedy any breaches and point out that continuing breaches of the Code might involve a report to the Professional Conduct Committee unless the breach was remedied.
Arbitrators' Role
The Arbitrators' role is to assess the situation and resolve it in accordance with the evidence to their satisfaction. They then have the authority to impose their decision on the parties. The rules and procedures are set out in the attached rules.
It is suggested that the formality of arbitration should be reserved for the situation where the parties have decided that they can no longer work together and a split - whether of one group of barristers from another, or the departure of the Senior Clerk - has already occurred, or is imminent.
