Good arbitrators need not be lawyers

Of late, there have been calls emanating from the legal fraternity on the need to regulate the operations of labour arbitrators in Zimbabwe. I have always held the same views. For the record, at a conference organised by Industrial Psychology Consultants held in Harare in September 2010, I highlighted a number of pitfalls bedeviling labour arbitration in this country.

Arbitration, as originally conceived, was meant to be a cheaper, simpler, faster, more flexible and informal way of resolving disputes between parties. In fact, that is the raison d’être of the alternative dispute resolution (ADR) mechanism, which also includes conciliation and mediation.

My point of departure with other critics is where they hold that only lawyers make competent arbitrators. About two months ago, prominent human rights lawyer Alec Muchadehama was quoted in the Press as saying that “Some of the arbitrators are public relations and human resources practitioners who have no legal qualifications, which makes their competence questionable.”

Another legal expert Muchadeyi Masunda is reported to have remarked in the same Press: “The majority of the labour arbitrators, to the best of my knowledge do not have any legal training. Most of them appear to have been drawn from designated agents (National Employment Councils)”.

Section 98 (6) of the Labour Act Chapter 28:01 empowers the Labour and Social Services minister, in consultation with the senior president of the Labour Court to appoint as an arbitrator any labour officer, ex officio, or designated agent or “any other person whom he considers to be experienced or qualified in arbitration”. The basis of this provision is that one does not need to be a lawyer in order to qualify as an arbitrator. Anyone can be a good arbitrator regardless of background.
Some of the best arbitrators in the world have cut their teeth in the medical profession, engineering, architecture, education and so on. An individual with a strong medical background will make a better arbitrator for disputes in the medical field than a lawyer straight from law school. In the same vein, who can be better umpires in labour disputes if human resource professionals, trade unionists or designated agents are excluded?

In labour disputes, experience in labour relations is always necessary for one to be an effective arbitrator. An audit conducted by Lovemore Madhuku in 2010 found ADR operated by designated agents of national employment councils to be working well. Most designated agents are qualified individuals with degrees in behavioural sciences and have extensive experience in labour relations which most lawyers do not have.

In British Oil & Cake Mills v Horace Battin & Co (1922) 13 LL LR 443, judge Darling opined: “The people who go to arbitration desire to have arbitrators or umpires who will not decide on evidence alone, but will bring to the consideration of the case a great deal of special knowledge.”
The argument was further refined in Jordeson & Co v. Stora Kopparbergs Bergslags A/B (1931) 41 LL LR 201 where Judge Branson stated at page 203: “Now, I think that the fact that this umpire was an expert in the timber trade and was appointed because he was such an expert should not be lost sight of. I think the parties must be taken to have assented to his using the knowledge which they chose him for possessing; I do not say knowledge of special facts relating to a special or particular case, but the general knowledge of the timber trade which a man in his position would be bound to acquire”.

These views of the learned judges make common sense. In fact, lawyers have greatly contributed to the current mess in which our arbitration is. A colleague of mine once joked that lawyers are like bricklayers — they deliberately hold up the dispute resolution process as they will be seized with various other legal matters! Arbitration has tended to mirror the same litigation ills it is supposed to cure, thanks to the role played by lawyers.

Lawyers have also “judicialised” the whole arbitration process. The current trend is away from the original model of arbitration as an informal means for the resolution of disputes. In a paper presented at an IPMZ Labour Briefing in November 2009, arbitrator Johnlife Mawire remarked: “What is worrying though is that arbitration is becoming more technical than initially intended. It is therefore incumbent upon arbitrators to discourage this unfortunate development which threatens to derail not only equity in labour matters but also the much-needed access to justice.”

Mawire himself is a lawyer by training. Though he was quick to point out that the opinions expressed in that presentation were entirely his, nothing can be further from the truth! That only lawyers can be good arbitrators is a tale not to be believed. It is nothing more than a desire by lawyers to jealously guard their turf. Have clergymen not done the same? A man of God recently warned people to desist from interpreting prophecies, but to leave that duty only to those especially God-ordained to do so!

Aristotle, many years ago said, “. . . an arbitrator goes by the equity of a case, a judge by the law and arbitration was invented with the express purpose of securing full power of equity”. Is the distinction not clear?

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