This article was first published on Lexis Nexis, 29 September.
We need to talk about time.
Too often in arbitration we think of time as a proxy for something else. Time is money, as they say (particularly in light of the billable hour). Cut down on time and we will cut down on cost. Also, time spent on arbitration is time lost on your business. Spend less time on an arbitration and you will have more to spend on your business – and therefore make more money.
I would be the first to admit that arbitration practitioners often use time badly, and that costs for the user can mount as a result. But I think the reason is often that we don’t have a proper understanding of time in arbitration; and, as a result, we don’t have a proper understanding of arbitration itself.
Time, cost and quality
There’s a famous depiction of the relationship of time, cost and quality as three sides of a triangle. Speed something up, and you may spend less, but have lower quality. Spend less, and again you’ll compromise on quality, and you might get a slower result. Favour quality, and you may end up spending more time and money. Commentators often refer to this model when talking about time and cost in arbitration.
But is this right? It may be true for the production of goods in a factory, but what about arbitration? We forget that arbitration is driven by people, and people have various motivations. Some may take pride in their work and seek to provide the highest quality regardless of cost or time constraints. Others may be motivated by money and try to cram in the same number of chargeable hours regardless of the case length. Efficiency levels can vary depending on the individual, the team, and what else they are involved in.
The relationship between time, cost and quality may not be clear-cut. And perhaps it might not exist at all: depending on the circumstances, one factor might correlate to another but the third may be separate; or all three might be entirely independent of each other.
Time and change
We also fail to appreciate time as an agent of change. Arbitrations can involve an “adaptive lifecycle”, meaning that things can change along the way, with new evidence and new arguments emerging, and we may need to constantly reassess what the best way of proceeding is – rather than, as so often happens, treating the procedural timetable as being fixed in stone and any attempt to deviate from it as being a cardinal sin.
More than this, a dispute between people can change over time. Emotions can subside. Perspectives can change. Mediators well know that taking a timeout during a discussion can be useful, because space for a breather can allow solutions to emerge. Parties may also find that devoting more time to a dispute may make their business better: by spending time on self-examination they might work out how they have got themselves into this position and how they can improve things for the future.
Or time can worsen the situation. We can become distracted and lose track of things over time, with the result that we miss opportunities to resolve the dispute, or else we have to spend more money to catch up. We can treat the dispute as frozen in time, perhaps once the pleadings have been filed, and fail to notice when things move on. Time can make relationships more distant, as parties become entrenched in their positions; and time can render the dispute irrelevant even as the parties fight on.
A better understanding of time can lead to a better understanding of arbitration. Above all, arbitration is a human activity, and like all such activities it has complexities, which we often overlook. A greater focus on time and the depth it brings to arbitration might mean we think more carefully about what’s involved, and who’s involved, and how we can cater properly for both. We also need to appreciate that arbitration is itself a unit of time, which will run out. We must act appropriately in order to make best use of it.
Again, we need to talk about time: we need to devote time to talking about time in arbitration. Rather than assuming time is something we always need to minimise, we should hold seminars that put time at the centre of the discussion. We need to examine everything that is good and bad about it and learn how we can employ it well.
There’s been a culinary movement in recent decades called “slow food”. That’s a bit of a misnomer because it’s not really been about cooking slowly. Rather, it’s been about appreciating the proper time to prepare good food, with the right ingredients, and recognising that to get the best value out of cooking as an activity we may need to devote more time and attention to it. The same approach has been adopted in several other areas of life: slow money, slow science, slow parenting and others. Perhaps we now need slow arbitration.
Read the Lexis Nexis Future of Law blog here.