Expert: Timmy Chou - 12/30/2005

Question
My company is a party in a "Plycif contract" we have made a claim for "Non Performance",we have followed all the arbitration rules as laid down by the contract and have appointed our own arbitrator and asked the shipper to appoint his,he failed to do so,so we applied to the UK'S "Timber Trade Federation" and asked the president to appoint one for them,he responded saying he could not find a suitable arbitrator,so we applied to the vice president with the same outcome.
How do we progress this matter,do we apply to the courts and ask them to appoint a suitable person or is there other actions we can take to recover the monies we have lost due to the non shipment of the contract in question.
I look forward to hearing from you.

Best Rgds.

John Pickford

Answer
Thank you for your question!

As you may know, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.

The case you describe here is far too typical and is one of the problems associated with arbitration.  I am not a lawyer but I can respond to your question from my business consulting experience.

Note that this issue will have legal ramifications and you may wish to consult an attorney.

The answer here is to simply file a lawsuit.

Even though the contract may specifically say you waive this right the contract assumes the parties will use their best efforts to arbitrate.  If they don't, or if they stall, they are denying you the right to the hearing and settlement they agreed to in the contract.  They have violated the contract rights and should be sued to compel them to come to the table.  

The simple threat may be enough to get them off the dime.  

If the Federation (who I assume is a trade organization that is named somehow in the contract) does not assist you and compel their "member" (your adversary) to come to the table, I would add them to the claim as a co-defendant, arguing that they are aiding or colluding with their member by not disciplining their member to abide by the membership rules (I assume they have these).

You agreed to play by the rules if everyone else would as well.  They have refused and are harming you by their delay and irresponsibility.  Mediation is a possibility but will be the most productive if they have something to lose.  A lawsuit would help even the field.

These are some ideas.  Feel free to follow up with additional questions.

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:

   Confidential, no public record
   Limited exchange of documentation, information
   Quick, don't have to wait for a court date
   Arbitrators have expertise in the subject matter and are trained in conflict resolution
   Cheaper than litigation
   Preserves business relationships

Negatives of Arbitration

   It's a compromise, no %100 winner
   Complex arbitration can be costly
   If not satisfied, may litigate the arbitration procedure
   Poor results with an unskilled arbitrator
   Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

   Neutral mediator can objectively suggest alternatives not considered before
   Parties are directly engaged in negotiating the settlement
   Can be quicker than litigation
   Less costly than litigation
   Preserves business relationships
   85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

   may not reach a binding decision
   unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

   a clear winner and loser
   uses a prescribed set of procedures
   more predictable outcomes
   is final

Negatives of Litigation:

   waiting for court dates can do more harm
   usually more expensive than mediation and arbitration
   part of the public record