"Excellent Communication Skills" in arbitrators
According to one Guide to Arbitration it is “imperative to select an arbitrator with meaningful business or industry knowledge and experience, an ability to synthesize all the facets of the case and excellent communication skills” (What to Know Before Going Into Arbitration).
To me, this immediately prompts the questions how do you know whether your arbitrator has excellent communication skills and, more importantly, if you are an arbitrator, how do you develop these skills?
To the first question, I suspect is is almost impossible to determine, when appointing your arbitrator, whether he or she is in fact a good communicator. You can assess whether they are personable prior to a case, but you can’t, in my view, properly assess their communication skills until you have worked with them.
The second question is therefore much more pertinent. How do arbitrators develop good communication skills so that a party can have confidence that we will articulate clearly and concisely how we want the case to be presented to us? How do we show a party that we will respond promptly and diligently to correspondence and how do we assure a party considering us that we will write a lucid, accurate, balanced and reasoned award, months before we are called upon to do so? My point is that an arbitrator having good communication skills should be a given, so that a party doesn’t have to make the determination required by the first question.
There are often language and cultural barriers in international arbitration that are not properly addressed in an arbitration. As an arbitrator, it is hugely important to be clear and direct in what the arbitrator needs to best position themselves to decide the case. Taking control of proceedings can be done overtly, or subtlely, but an arbitrator must have control of the proceedings and good communication is vital in achieving this whilst maintaining the parties’ buy in to the process.
So how do we, as arbitrators, improve our communication skills?
Learn the importance of non-verbal communication
We all know that tedious statistic that 95% of communication is non-verbal, yet we all reach for email/text before we reach for the phone and we all reach for the phone before we go to speak to someone. At the hearing, remember the following tip: “To communicate clearly and confidently, adopt proper posture. Avoid slouching, folding your arms or making yourself appear smaller than you are. Instead, fill up the space you are given, maintain eye contact and (if appropriate) move around the space. “ (there are other useful tips in the article which I have linked to).
2. Listen more, talk less
A fairly obvious point, but I would say that an arbitrator’s role is primarily to listen. I would also say that arbitrators need to engage more in active, rather than passive listening. Both counsel and arbitrators need to be sure that the message that has been sent has been properly received (and processed) by the listener.
3. Ask for feedback
This is a difficult one. As an arbitrator I always ask the arbitral institution for feedback at the end of every case and try to find areas where I could improve, but I am acutely aware this is no substitute for receiving feedback directly from the parties.
