The arbitrator’s role is to give an opinion as to what the protest committee is likely to decide. Even though the process is informal and the boats are not bound by the opinion of the arbitrator, all of the safeguards built into RRS Part 5 Section A Protests and Redress and Part 5 Section B hearings and decisions remain in place. Whether or not the opinion of the arbitrator is accepted, the protest remains and must be heard by the protest committee. See rule 63.1
, the requirements for a hearing. Only if the protestor requests to withdraw the protest may the arbitrator act on behalf of the protest committee to allow the withdrawal.
Arbitration takes place after a written protest has been delivered, but prior to the protest hearing. Hold the arbitration meeting in a quiet location, well away from other competitors and observers. Provided that both parties agree, a judge trainee may be allowed to observe the process. Otherwise, no observers are permitted. Testimony given during arbitration should not be overheard by any potential witnesses. Only the arbitrator, the protestor and the protestee are permitted to attend. No witnesses will be permitted. If a party believes the case requires a witness, the protest goes to a protest hearing.
Arbitration is appropriate when:
• the incident involves only two boats. A protest involving three or more boats is usually too complex for the arbitrator to handle in less than 15 minutes.
• the incident is limited to the rules of Part 2 or rule 31
. If it becomes clear that other rules are applicable or another boat may be involved, the arbitration meeting should be closed and the protest forwarded to the protest committee.
• rule 44.1(b) does not apply.
The arbitrator conducts the arbitration meeting with the knowledge that the protestor might not ask to withdraw the protest, and so it may still be heard by the protest committee. The arbitrator never enters into a discussion on the interpretation of a rule or answers questions regarding any conclusions until after the protest is withdrawn.
The arbitrator’s task is to offer an opinion as to the likely outcome of the protest if it went to a protest hearing.
The first step is to give an opinion on the validity of the protest. This includes the possibility that the protest committee will find the protest is invalid. For example, if the protest form and the protestor’s testimony clearly indicate that the protestor did not comply with RRS 61.1
(a), the arbitrator will advise the parties that the protest committee will likely find the protest invalid. The protestor then may request to withdraw the protest, or proceed to the protest committee for a hearing. In either case, the arbitration ends.
If the protest is clearly valid or clearly invalid after the protestor’s initial statement, then the arbitrator’s task of giving an opinion on validity is easy. However, it is much more common that the protest is neither clearly valid nor clearly invalid. In such cases, consider:
- The task of determining validity during arbitration cannot be an exhaustive investigation. No witnesses can be called and it is unlikely that extensive questioning will resolve validity.
- Due process is not at risk because neither party is bound by the decision of the arbitrator.
- A statement by the protestor that a hail was made and a flag was flown, coupled with a statement that the protestee did not hear the hail and did not see the flag, does not mean that either party is not telling the truth.
The arbitrator will consider the evidence on the balance of probabilities and give an opinion as to what the protest committee is likely to decide. When the arbitrator is in doubt, the protest is not suitable for arbitration and it proceeds to a hearing with the protest committee.
The second step occurs if the arbitrator’s opinion is that the protest is valid. The arbitrator should then ask if there was any damage or injury as a result of the incident. If it is possible that RRS 44.1
(b) applies, then RRS T1
(a) and RRS T2
do not permit the boat to take a Post-Race Penalty. In that case, the arbitration meeting would not be held, and if it was in progress, it would be closed.
If the arbitrator’s opinion is that the protest is valid, and if RRS 44.1
(b) does not apply, then the arbitrator continues with the arbitration. In this step, the arbitrator takes each party’s testimony in turn, using model boats. The arbitrator asks any necessary questions, but keeps tight control of the conversation.
The arbitrator will offer one of these opinions as to what the protest committee is likely to decide:
A. The protest is invalid.
B. One or both boats broke one or more rules. The arbitrator applies the principles of exoneration to a boat that has been compelled by the other boat to break a rule.
C. No boat would be penalized for breaking a rule.
D. The protest is not suitable for arbitration. The protest might be too complicated to decide without witnesses, it may involve a rule not suited to arbitration, or the Post-Race Penalty is not appropriate. The protest then proceeds to a hearing unless the protestor requests to withdraw her protest, and the arbitrator allows the withdrawal.
A good way for the arbitrator to give his opinion is by saying “if this goes to a protest hearing, the protest committee will likely decide that . . .”
The entire process should take no longer than 10 to 15 minutes. If the arbitrator does not have an opinion within that time, the issue is too complex for arbitration, and the arbitration meeting should be closed. The protest then proceeds to the protest committee for a hearing.
If any appropriate penalties are taken, the arbitrator then asks if the protestor wants to withdraw the protest. Under RRS T4
(b), the arbitrator may act on behalf of the protest committee in accordance with rule 63.1
to allow the withdrawal. However, the protestor is under no obligation to request that the protest be withdrawn.
If the protest is not withdrawn, it must be heard by the protest committee. Sometimes a protestor may refuse to withdraw the protest in order that the protestee will be scored DSQ in the protest hearing. The arbitrator should explain that if a boat accepts an appropriate penalty, rule 64.1
(b) applies. The boat that took the penalty then could not be penalized further unless it is proven that the Post-Race penalty was not appropriate, normally because rule 44.1
Once the protest is withdrawn, the arbitrator may discuss any aspect of the case with the parties to the hearing. Successful arbitration is often followed with a discussion of a number of possible scenarios, if time allows. If time is limited, the arbitrator can arrange to meet the competitors at a later time.
Testimony given during arbitration remains confidential and the arbitrator must not discuss any aspect of the arbitration with the protest committee before the hearing. The judge who held the arbitration meeting shall not be called as a witness during any subsequent protest hearing as the earlier testimony obtained by the arbitrator is not first hand. The arbitrator may be called as a witness if there is a subsequent hearing under rule 69 against one of the parties for lying in the protest hearing.