Arbitration carries with it considerable flexibility in choosing your decision maker, adapting the arbitral process to suit the dispute and the needs of the parties, and maintaining confidentiality, if that is a priority. This flexibility has been most apparent in the recent development of low value arbitration procedures (as seen in the expedited arbitration procedure in the AMINZ Arbitration Rules) and in the arbitration of iwi disputes, turning on establishing and applying tikanga Māori.
While the Arbitration Act 1996 provides for such procedural flexibility (expressly constrained only in the equal treatment provisions in article 18), drafters and counsel should not lose sight of the fact that the arbitral award is final and binding. That is not to say that the High Court Rules should be applied blindly, as counsel's happy place. However, in the rush to efficiency, all parties should be cognisant that the arbitral proceedings may be the one and only opportunity to have their dispute dealt with.
The attached article, published in this month's LawTalk considers this paradox further.