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How an arbitrator decides the outcome of a complaint
What is arbitration
Arbitration is a type of alternative dispute resolution. In some cases, when arbitration is used, you and the other party you are in dispute with don’t even have to meet to discuss the problem again.
Arbitration is a way of settling a dispute without having to go to court. You are called the claimant and the other party you are taking action against is the respondent. You both put your case to an independent person called an arbitrator. The arbitrator listens to both sides, looks at the evidence you've sent in and decides what the outcome should be. In some cases the arbitrator may choose to have several meetings with you both.
When the arbitrator makes a decision, this is called an award and it is legally binding. If you don’t agree with the decision, you can’t take your case to court to get the decision changed.
Many trade associations offer arbitration under a code of practice to help you settle the problem and may organise the arbitrator for you. If the trade association does not have an arbitration scheme you can apply yourself.
Applying for arbitration
You can apply for arbitration to the Chartered Institute of Arbitrators (Scottish Branch). An application form is available on their website at www.ciarb.org. Your application can only be accepted if you pay a fee plus VAT. In 2016 this fee is £250.
When the award is made you may have the initial fee paid back to you within the award if you win the case.
What does the arbitrator do
The arbitrator sets out the procedure which will allow each side to submit their evidence and tell their story. Each side will also have the opportunity to respond to the case put by the other side.
The arbitrator gathers in all the evidence from the claimant and the respondent. They will consider the complaint based only on the written claim and supporting evidence. Sometimes you or the other party may be asked to send in further details. Sometimes, in a consumer case, the arbitrator may visit you and inspect the goods or service you're complaining about.
If the case is complex and written evidence is not enough to decide the outcome the arbitrator can meet with you and the other party. It is up to the arbitrator to decide what process should be used to gather all the information needed to make a decision. The arbitrator is expected to abide by a Code of Conduct available on the website of the Chartered Arbitrators (Scottish Branch) at www.ciarb.org.
The arbitrator can ask a technical expert to help make the decision or to provide a report about the claim. You and the trader will be sent copies of any report by the expert.
How long does it take
You can usually expect to hear the arbitrator’s decision within 45 days of the proceedings being closed by the arbitrator. However this timescale is usually set by agreement between you, the other party and the arbitrator.
If there have been meetings between the arbitrator and both parties, to explore some of the issues, you may have been given deadlines for your comments. Don’t ignore any of these deadlines.
You and the other party will each be sent a copy of the decision. It will contain the reasons why the decision was made and details of any compensation to be awarded.
If you win the case
The arbitrator makes an award. The arbitrator can decide that the other party should also pay your fee for registering the claim for arbitration. This has to agreed at the time the arbitrator is appointed.
You may also be entitled to any interest on the claim. This will be paid from the date the award is made until the date the money is actually paid to you.
The award can be registered in court and you will then be able to force the other party to pay any money due to you.
If you lose the case
It's very hard to challenge a decision the arbitrator has made. You can't appeal if you simply disagree with the decision.
If you think that the case was not handled properly you should get advice about what to do next. You may be able to make an appeal to court on a point of law.
Expenses of arbitration
You and the other party are jointly and severally liable for the fees and outlays of arbitration unless a trade association runs the scheme and pays for the work of the arbitrator. You will normally agree at the beginning what these expenses are. The arbitrator can apportion costs if you and the other party agree to the arbitrator doing this.