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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.
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.
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 – rath
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