by Chris Chilton

 

Over the next few months, the DBF will be launching its intensive and interactive two day course, "The Decision: Structure and Organisation".  This is in response to the demand for advice on effective Dispute Board decision writing.
 
Whilst the course will look at the broader issues of a Dispute Board decisions, Chris Chilton, chair of the DBF Board Selection panel, shares his thoughts on aspects of the writing process.
 
I love being a writer.  What I can't stand is the paperwork.
Peter De Vries
 
As professionals, our words are what endure.  Long after the face and the voice are forgotten, the decision that sits in someone's file lives on, particularly in the heart of the party against whom the decision was made.  We have a tendency to protect our own work, to think that because we have gone through our words several times, they can't be improved on...but...they always can.
 
But ...other than it being a requirement, why do we write a decision in the first place? It's all about communication.
 
Communication is the process of transferring information from a sender to a receiver with the use of a medium in which the communicated information is understood by both.  So the key to it all is understanding
 
If you want people to understand, you've got to explain
Joe J McKay.  CEO Blackfoot Indian Writing Co.
 
Understanding is a psychological process.  It is related to an abstract or physical object, such as, person, situation, or message whereby one is able to think about it and use concepts to deal adequately with that object.  Nothing more and nothing less.
 
Remember that words add no value unless they support communication and understanding i.e. to present the reasons for the decision and the decision itself. Words, sentences and paragraphs - plain and simple.
 
It depends on what the meaning of "is" is.
Bill Clinton 1998
 
One of the dangers of expertise in one area is the presumption that we can be expert in other areas.  This has been evidenced recently by professional services firms moving away from their core business and offering a range of services, which only dilutes their original expertise.  So it is with writing.  The core of the business of writing are words, sentences and paragraphs.  Never be ashamed to take advice on these things.  Never be ashamed to reach for the dictionary.
 
My spelling is wobbly.  It's good spelling but it wobbles, and the letters go in the wrong places.
Winnie the Pooh (A A Milne) 1926
 
Most IMPORTANTLY use Plain English!
 
Incomprehensible jargon is the hallmark of a professional
Kingman Brewster
President Yale University 1977
 
The Campaign for Plain English (www.plainenglish.co.uk) gives some great examples of getting it wrong.  Try this:
 
"The results of the price barometer illustrate that the reprieve in the pace of price inflation evident in the first quarter has abated."
 
And this,

"If there are any points on which you require explanation or further particulars we shall be glad to furnish such additional details as may be required by telephone."

How much better instead are:
 
"Prices are rising again"  and "If you have any questions, please phone."

The Golden Rules
 
The longer the message. The greater the chance of misinterpretation.
 
If you get all the facts, your judgement can be right; if you don't get all the facts, it can't be right.
 
However no set of rules can replace the expertise that professional Dispute Board members bring to bear.  But there is no doubt that these rules can make that expertise more transparent and easier to understand.
 
Your words will be scrutinised - every letter, every word, every mark on the page - particularly by the party who feels most disadvantaged by your decision.  This is the ideal place to aim.  The loser, despite having lost, reads your decision and in doing so develops respect, even if reluctantly, for you and your work.
 
The over-arching rule is clarity.  This is about structure, correct grammar, punctuation, precision, non-ambiguity, conciseness, completeness and elegance
 
·        Precision:  Say what you need to say - no more and no less
 
·        Non-ambiguity:  Understand the precise meaning of the words you use.  Choose words that in their context can only be reasonably interpreted in one way.  And make sure that is the way that you intend them to be interpreted.
 
·        Conciseness:  Be to the point.  No repetition. No waffle.  Don't be long-winded.  Stick to the point and consider only the matters for which you are being retained.
 
·        Completeness:  The balancing act is between completeness and conciseness.  Never include things because you don't know whether or not they should be included.  Leave that to the young student who scribbles down all of their knowledge comfortable that "it's all in there somewhere".  Express ideas and reasons completely.  Give the full story.
 
·        Elegance:  Your writing must flow and it must have rhythm just as the work of the Dispute Board will have flow and rhythm.
 
What makes this kind of writing difficult?
 
In a word: readers.
 
I am often asked what is the difference between general professional writing and writing in support of dispute resolution.  Why is "legal" writing so difficult? Generally because legal documents have a unique and diverse readership; you as author, your fellow Board members, the Employer, the Contractor, the parties representatives, arbitrators, judges - each with a different agenda.  
 
The biggest obstacle to professional writing is the necessity for changing a typewriter ribbon
Robert Benchley 1949
 
The best advice however is that we should all use a good dictionary. Here's a list of some of the books that I carry around with me.  We live in the world of William Gate's Office Assistant, that delightful bouncing paperclip, and the inevitable spell checker that invariably gives you a version of language that doesn't quite match your expectations.  But there is no shame in using a dictionary too. My recommendations include:
 
Bryan A Garner, A Dictionary of Modern Legal Usage, 2nd Edition, Oxford, 2001
The Oxford Guide to English Grammar, Oxford, 1996
The Oxford Guide to the English Language, Oxford, 1985
The Oxford Guide to English Usage, Oxford, 1994
Shorter Oxford English Dictionary, Oxford Dictionaries, 2007
Charlton Laird, Michael Agnes, Webster's New Roget's A - Z Thesaurus,
John Wiley, 2009
Margot Costanzo, Legal Writing, Cavendish Publishing Limited, 1993
Sir Ernest Gowers, Complete Plain Words, Penguin, 1986
R L Trask, Mind The Gaffe, Penguin, 2001
 
 

 

The Documents Committee of the Dispute Board Federation is pleased to announce that its new edition of the DBF set of Documents including the updated Dispute Board Rules & Procedures, Dispute Board Member Form Agreements, Writing the Decision Guidelines, along with new form clauses for the use of Dispute Boards and the newest aspects of integration of mediation clauses into standard form agreements will be released within the next 45 days. 

 

The new standards of ethics for Dispute Board Members is also to be released shortly thereafter and will provide useful guidelines for conduct of Dispute Boards and their Members.

 

These new documents will allow users to customise their existing form agreements to better comply with good practise standards for Dispute Boards and to ensure that the Dispute Board provisions are in line with the Agrements for Dispute Board Members.  All forms will be available on-line at no cost through our website.