There is an expression in German-Glück im Unglück-that means "fortune in misfortune". Just the other day, I was fortunate to have a bit of misfortune that aptly illustrates why the value that the participation of a user can add to an arbitration is maximized by consistent, constructive involvement.

I would like to share an anecdote. I am currently involved in an English-language arbitration in Germany that is neither large nor complicated. In fact, it seemed to be running along smoothly until the only phenomenon that is perhaps more dangerous than the "vanishing client", as mentioned in V.V. Veeder's contribution to this dossier, occurred, namely the appearance of the "submarine client". The "submarine client" is a client that unpredictably appears and disappears from any given matter. In this particular example, the submarine client made his first appearance only after the terms of reference and the procedural order had been agreed, in which it had been decided that document production was unnecessary in a case that was fundamentally about an interpretation of German law. Adding to the attractiveness of this anecdote for present purposes, the submarine client made his appearance in the guise of another perennial favourite of conferences like this: the American lawyer. The submarine's client's first (and so far only) contribution to this matter was to object to the position of his own German lawyer.

The submarine client once again sank beneath the surface, leaving his poor German counsel to try to explain why, despite his prior agreement, he suddenly considered imperative extensive document production, cross-examination and lots of other things that people, sometimes unfairly, tend to believe are the preference of American lawyers. In this case, it remains to be seen whether these procedural adornments will actually prove useful to the tribunal in resolving the dispute at hand. What is clear, however, is that client involvement in this matter would have avoided the extra time, additional cost and general puzzlement of all concerned. The apparent miscommunication between client and counsel and, as a result, with opposing counsel and the tribunal is not the point. Let this anecdote serve instead as an advertisement for the start-to-finish involvement of users-meaning in-house counsel and their business clients-in arbitration.

In my own practice, I always either attend or encourage people in my team to attend procedural hearings, because I believe that the client's involvement is absolutely necessary even, and especially, in the procedural aspects of our practice. In a recent speech, Professor Albert van den Berg even suggested that the client's participation in procedural hearings be mandatory. I would hope that it will not be necessary to order participation in a process when the advantages of user involvement in terms of substantive dispute resolution and procedural cost savings along the way are so clear. In any case, I welcome Professor van den Berg's encouragement of attendance at procedural hearings as a way of getting the client involved. Perhaps it will help to prevent the kind of "fortunate and unfortunate" experience that I recently encountered.

The theme of this paper is mythology. Mythology is convenient, even when we know it is not true, because sometimes we wish that it were true. We continue to rely upon mythology as a convenient way of explaining why the dysfunction of the process is not really "our fault". As a user, speaking on behalf of users, I wish to take partial responsibility for that dysfunction and declare that users are not alone.

In a recent study carried out at Queen Mary, there were two salient statistics that jumped out at me. The first was that there is an 81% preference in a forced-rank analysis for a "fair and just result". That is true. Clients are not just looking to win. They are looking for a fair and just result that allows them to continue their business. This is the well-known statistic, because everyone likes to cite it.

The other statistic relates to the fact that clients are quite willing to take responsibility for causing problems in international arbitration. In the same study, approximately 60% of users take responsibility for problems. Digging deeper into the study, we also find that, while 60% of users willingly (if anonymously) admit to being at the origin of "problems", they still look to arbitral institutions to solve those problems for them. Despite being less well known, this statistic should not be considered surprising either.

A familiar theoretical explanation for this phenomenon comes from the science of economics, where it is described as collectively irrational outcomes based on individual rational decisions. This is frequently borne out in practice. It is entirely rational for a party that benefits from the status quo to delay the proceedings and make them more expensive. Why? Because, with exceptions and all other things being equal, the cost of the pending arbitration to the claimant in pure business terms encourages a settlement more favourable to a respondent who benefits from a favourable status quo.

Let us give business users the benefit of the doubt and assume that they are always as right as they think they are and, therefore, that it is their opponents who must be wrong. Thus, it is the business users who are generally the victims (and certainly never the perpetrators!) of tactics aimed at delaying procedures and increasing costs. It is therefore logical that those who are right would look to arbitrators and arbitral institutions to interfere with the plans of those who employ such tactics. The mythology that governs applies here is that the users will be able to settle such problems among themselves. This is no different, for example, than expecting the polluters of the world to get together and actually agree to stop polluting. No, the reason the cap and trade system was invented is because the polluters of the world will always seek to take advantage of a situation that allows them to do pollute. Hence, we are also faced with the tragedy of the international arbitration commons. I regret to share with you the fact that the global community of users understands the weaknesses in the system and arbitrators' tolerance for their exploitation in the name of due process. In their weaker moments, users are perfectly willing to exploit these weaknesses to the extent that arbitrators give them the opportunity to do so.

The first thing that we can do in order to prevent users (who, of course, are always right) and their opponents (who, of course, are always wrong) from actually being allowed to exploit those opportunities is to be involved. Encouraging involvement is the job of other clients as well as of outside counsel and arbitrators. A user who is present in the room and sees the destructive potential that is available (at the direction but also on the responsibility of the user) will probably show a tendency to avoid it in most cases.

On the one hand, we regularly note that arbitration enjoys a positive reputation among our clients, which is true. However, that reputation can occasionally be too positive, because it takes the form of unjustified expectations. Again, the solution is more client involvement. In all arbitrations, but especially when I have a wilful business client, I try to actually involve my business client in the process. I have a reasonably good understanding through experience and study of how the arbitral process works, but I find that some of my business clients are more reactive to a live view of the process than to counselling about it from a distance. So, to take a step further just beyond the legal counsel that may or may not be involved in the arbitration, there are the business people who rely on the result of the arbitration and for whom the fair and just result is actually the point.

Getting business people involved in the process can help them better understand the value of a complete and unqualified result, but, far more importantly, it can help them understand how legal processes can have a negative impact on relationships as a result of their failure to be involved. Nearly 100% of the arbitrations in which I have participated concern long-term relationships, and nearly 100% of the long-term relationships in some industries are maybe based not so much on choice as on the fact that players have no choice but to trust and work with each other. Arbitration is the expression of an opportunity to try to fix a dysfunctional relationship. If we choose not to be involved in that process, we should not be surprised when the process does not satisfy our clients.

Privacy and confidentiality are another reason that some of us choose to get involved in arbitration. Of course, there is the obvious interest in preserving the confidentiality of an elective form of dispute resolution. At the same time, privacy and confidentiality have a price, because sometimes what is communicated in the hearing room does not make its way back to the client. What I try to do for those clients who cannot be involved in the hearings themselves is to take back to them the information that I have heard. Predicting the result based on whether arbitrator X or arbitrator Y nodded knowingly or smiled during a particular line of questioning is not the point. Rather, the focus is to help business clients understand how the dynamic of the process itself will help the settlement of the dispute. I personally find that my clients are most satisfied with the arbitrations in which they have participated. In fact, they often seem more satisfied when they have participated in arbitrations where we were not successful in getting what we claimed than in arbitrations where we were 100% successful but in which they did not actually participate. The difference is the appreciation of the various functions of the process beyond the simple resolution of a disputed point.

Accelerated settlement dynamics are another useful consequence of user participation in arbitration. One phenomenon whose significance is not always appreciated is that, while the outside counsel of the parties usually remain distant from one another, the in-house counsel and the witnesses meeting in hearings feel an immediate need to come together and discuss. That does more to foster settlements in the line of fire than perhaps anything else any actor in the arbitral community can do. Bringing users together and giving them a reason to overcome the irrational fear of appearing "weak" (by being the one to reach out to discuss settlement) is something that the arbitral hearings are quite successful at fostering. In other words, since both sides have to be there, why not take the opportunity to release the arbitrators of the obligation of settling the dispute by agreeing that this is really unnecessary in view of the evidence that has been presented.

Outside counsel and arbitrators have their own mythology. Outside lawyers will tend to believe that they have been hired to replace in-house counsel in arbitral proceedings. That is simply not accurate: they are part of a team, not the whole team. In some cases, in-house counsel may fear that they do not know enough about the process to feel that they can contribute. Their views about the relationships and the long-term business perspective are nonetheless absolutely vital to the successful outcome of the process, whether that outcome is achieved through a settlement or through the dispute being resolved through an award. In any case, from a risk-management perspective, non-engaged clients may present outside counsel with non-responsiveness or an inaccurate presentation of the risk to the business. In such cases, encouraging client participation is especially vital, not least because the client has a less developed understanding of the process.

Those in-house counsel who do have an understanding of the process may have some procedural and substantial ideas to contribute as well. Thus, external counsel should not be afraid or feel abused by clients. The are entitled to a frank discussion with their clients about their expectations regarding their participation at the outset rather than just receiving the factual information they need. This may also make things easier when they have to send their clients a disappointing award and a very large bill.

Arbitrators may also buy into mythology. One such myth is that what users of the system want is an award. In fact, what they are looking for is a result, which comprises the process as well as the award. Yes, a fair and just result does describe the award, but it is also much more than that. I have already described some of the ways in which a well-run process forms a large part of the value that users are "buying". Let me give you one more example. For us, the award serves as a kind of long-term interpretive guide to the contract that formed the subject of a dispute. It is not at all uncommon for a well-written award-one that has carefully considered the issues-to serve as a basis for the resolution of later disputes between the parties for many years. The award takes on the role of a kind of supplementary guide to the contract, which is not something for which court judgments are frequently used. Arbitrators who understand this will serve the interests of the users best by taking the time to weigh the evidence and actually write about their thought processes.

This reality may weigh against the traditional wisdom (or myth) that the speediest award is always best. While there is value in an award that comes quickly, there is also value in an award that is thoughtful and perhaps more analytical than one that is simply necessary to resolve the dispute. There is a false economy in always and exclusively pushing arbitrators to render the quickest possible award. It may be necessary under some circumstances but removes the opportunity for a more comprehensive resolution of the issues between the parties. One size does not fit all. Speed is important in certain disputes. Good arbitrators will pick up on the vibe between the parties to determine whether one party is perhaps exploiting the status quo and lengthening the process while another party favours a speedy resolution of the process. The right balance between a timely award and thoughtful reasoning can only be struck on a case-by-case basis. The arbitrators and institutions to whom the users look for help will be the ones who strike the right balance between the value of a speedy award and the value of more thoughtful reasoning. Either, or both, may be the key to saving the relationship between the two parties.

I have shared these thoughts in one form or another-in individual discussions, at conferences and even in publications such as this one-for years. I continue to do so because I believe that participation is very important. I suppose that, in this regard, I am so far meeting Churchill's definition of success, which is to go from failure to failure without the loss of enthusiasm.