Introduction

Once we start to imagine the range of third-party interventions in dispute processes – forms of ‘the triad’ – the line between ‘mediation’, considered in Chapter Six, and ‘umpiring’ marks the essential internal boundary in analytic terms. It is a move from facilitation, on the one hand, to determination, on the other; the power of decision is surrendered to a third party.

The simplest case we might imagine is that where two parties in dispute agree to approach a non-aligned third – the ‘neutral stranger’ – and ask her to make a determination for them. A whole range of attributes might give the decision-maker legitimacy in a particular case. The parties might trust her: because she has no stake in the issue; because of her reputation as a wise and fair decision-maker; because of her professional background and training. Simmel underlined, in Extract 6:1, the defining quality of this simple case: it lies in the consensual nature of the reference – the disputing parties agree to the determination of their issues by someone else. As he observed: ‘the voluntary appeal to an arbitrator … presupposes a greater subjective confidence in the objectivity of judgement than does any other form of decision’ ([1908] 1950: 151).

Another instance of third-party determination arises where the rank of the third party approached – a parent, employer, religious or political superior – gives that person authority to decide the matter on request of one disputing party alone, irrespective of the wishes of the other.