BOOK REVIEW. Disputes and Differences: Essays on the History of Arbitration and Its Continuing Relevance

Disputes and Differences is a collection of essays by Derek Roebuck, edited for publication posthumously by Susanna Hoe. It reflects two topics Derek Roebuck was so fascinated by: the history of arbitration and the continued relevance of that history today. This important collection adds to our understanding through articles and lectures; some reprinted here and some not previously published. It is a treasure trove of essays the editor had to explore and discover and select in the electronic and physical archive of the great professor and prolific writer.

The editor expended much effort and thought on organizing the material and making it accessible to even inexperienced readers of Derek Roebucks work. The resulting book is divided into three parts, first “The Past,” which forms the largest part of the collection, second the meaning of the past for the future titled “Past, Present and Future”; and third, essays that contextualize the practice of arbitration within interdisciplinary scholarly pursuits. The 25 essays comprise this 366-page book.

The texts and anecdotes are both diverting and thought provoking.

Part One: The Past

Part One contains the bulk of the work, 18 articles. These articles are like a stroll through history. They span pre-history, cross Egypt and Rome and finally treat medieval and early modern England to medieval Jewish, Maltese and Italian arbitrations as far as the American colonial period. This part one is an altogether interesting stroll through the ages, illustrating that many of the practice tips, uses and issues prevalent as early as Cleopatra’s Egypt are recognizable to today’s practitioner and may sometimes viable solutions for the future. The flexibility and continuity of alternative dispute mechanisms shines bright throughout these works and is made more vivid by Derek Roebuck’s use of anecdotal historical sources.

The first article establishes Derek Roebuck’s idea that mediation and arbitration are much older than is generally believed. He propounds the theory that methods of dispute resolution must have existed even in prehistoric times. Relying on archeological rather than written evidence as well as deduction, Derek Roebuck shows that the seed of formalized dispute resolution existed as early as the first societies.

The second article, a lecture originally published in 2008, focuses not on a prehistoric society, but on Egypt in the 1st century B.C. This article paints the picture of frequent use of arbitration and mediation in private and public affairs in this time. A broad range of sources is used in this chapter to establish evidence of a sophisticated and widely used dispute settlement system.

The third piece is an unpublished lecture. It uses disputes recorded in Rome from Britannia and other written evidence to illustrate the proliferation of Roman law in Britain.

The fourth chapter show that civil law and practice have influenced common law and arbitration. It fits into this narrative string, as it describes the development and decline of the compromissum in Roman law, in France and for centuries in England, the compromussium being a tool of dispute resolution and used around 100 A.D. This is followed by the fifth and unpublished work concerning the English compromissium, which continues the analysis of the previous article.

In the same context as the first work, work six enters an even deeper analysis of the meaning of arbitration and the existence of mediation in England in the Middle Ages and its advantages in comparison to the courts. The same period, but a separate group of persons using arbitration and mediation is discussed in work seven. It shows how religious groups within the group and between the groups, used the same instrument differently.

Chapter eight relates to the practical questions of arbitration and dispute resolution—the “how to.” It concerns the still-present question of the number of arbitrators, and how this issue was viewed historically. To my surprise, for 200 years in England, the number of arbitrators was even, rather than odd. The same period and the same general topic—how to—is treated in previously unpublished article nine. It deals with arbitration clauses in England between 1258 and 1600 A.D.

Article10 switches to a different, but related, jurisdiction: Malta. This article shows that mediations and arbitrations were quite commonplace in Malta. The 11th article returns to England under the rule of Elizabeth I. Article 12 treats the same period but with a specified group of arbitrators: Italians.

Article 13 describes how colonists in the new Americas used the dispute resolution methods they had learned in England in the new world. Article 14 jumps back over the pond to England and uses the accounts of an actual 18th-century practitioner of arbitration and mediation to illustrate the practice in the slightly later stage than we have seen in the previous articles and texts, showing the evolving methods and usages of mediation and arbitration. Article 15 describes the same rough period through the lens of a Scottish law man.

Article 16 focuses on the period 1600 to 1800 A.D. and the question of how arbitrators were appointed by parties.

While this part contains many more articles on medieval and early modern arbitration than ancient arbitration, the evolution of this legal field becomes clear. Not only is the history of alternative dispute resolution discussed, but the author also addresses the practical issues practitioners faced. This has the merit of connecting the problems to the evolution and making the discussion more accessible and more memorable.

Part Two: Past, Present and Future

The second part of this book summarizes Derek Roebuck’s desire to keep modern dispute resolution flexible and affordable, while promoting resolution of the merits of the disputes.

Part Two contains only three articles: “The Future of Arbitration,” “Time to Think: Understanding Dispute Management,” and “Keeping an Eye on Fundamentals.” The first article expresses Derek Roebuck’s view on the future of arbitration. He looks to Elizabeth I and demands: “If Elizabeth I could insist on disputes being resolved on the merits, providing a universal scheme to do it, apparently without too much fuss or cost, why can’t we?”

The second chapter in this section of the book is a lecture concerning dispute management, which advocates clear procedural law to make mediation and arbitration function better, Along the same lines, the final article in this section calls for a return to the core of what individual dispute resolution mechanisms are supposed to do, criticizing the tendency to render mediation too rigid. He ends by asking: “Is not the purpose of dispute resolution to end a dispute to the maximum satisfaction of both sides with the least cost to each?”

Part Three: Language, Research and Comparison

Part Three, the final part of the book, contains four chapters, which vary in their topics from the pitfalls of prescription to a suggestion of topics for research in ADR. At its core, this section summarizes articles and texts that reflect Derek Roebuck’s intense belief in and advocacy for interdisciplinary research. All texts express that only by using the skills and knowledge of other specializations, professions, and people can understanding be reached and true progress be made.

The first chapter in this section represents one of the finest illustrations of the problem of language not only in communication, but in the law. It also taught me two things,I will never again forget, that a stout is a summer ermine, and that restoring peace can be—but maybe should not be—the domain of lawyers.

The second chapter in this final part of the book also concerns communication, specifically instructions for lawyers on how to communicate plainly. “Plain language is not a dialect of the standard language but a relationship between the text and its audience. Text that will be plain for one audience will not be plain for another.”

The third and fourth chapters in this section continue to promote the idea of interdisciplinary communication and research.

Conclusion

This book showcases Derek Roebuck’s understanding of the topic of dispute resolution as deeply rooted in history. Methods of dispute resolution—whatever terminology used—were needed and used throughout the ages and across cultures. The issues facing the parties and arbitrators have largely remained the same. Using Derek Roebuck’s work as a guide, we can research the past to find clues for solutions in the future.

What I do not want to leave unremarked, as it is so prevalent throughout all the articles assembled here and in all the works written by Derek Roebuck, is the presence and veneration of women and their role in law, mediation, communication, peacekeeping and history. In no writing have I felt equality and respect as strongly as in the work of Derek Roebuck. I have here stressed the merits of this book and his work, and this pervasive sense of equality is one of them.

Dr. Laura M. Pair, JD LL.M. is a fellow of the Chartered Institute of Arbitrators, a partner at Pairfact Legal AG and serves as counsel and arbitrator in commercial disputes. www.pairfactlegal.com; [email protected].