Like advocacy, award writing is a solitary and idiosyncratic art. No doubt others use different brush strokes. These are my tips for award writing.

A stitch in time saves nine. The tribunal does not want to be left at the end of a hearing without a clear roadmap of what is required of them. I favour case management which provides for a ‘proper’ advocates’ statement of issues. No argument, just a thoughtfully organised and numbered list of the factual, legal and discretionary decisions I am being invited to determine. This becomes a useful cross-check both in closing submissions and in writing the award, to ensure all the issues I need to consider have been dealt with.

In a particularly knotty and document-heavy case, I may invite the advocates to list and cross-reference the relevant page number for each document which is said to be pertinent to each issue. The PD 27A requirement for 350 pages is an attempt to get the parties to think more carefully about what documents the tribunal will need to consider. A cross-referenced list of all relevant documents is a further step in encouraging the advocates to focus on the key issues. It then acts both as an invaluable index for the write up and an aide memoire of the documents which may need to be referenced in the award.

In advance of a hearing, a tribunal will have carefully considered the papers, schedules and skeleton arguments. But the pre-read is different to the advocates’ preparation. It has a lighter touch. It is interested. It is curious. It will canvass the figures. But it will be open-minded. The tribunal is ready to listen and to learn. The heavy lifting for the tribunal starts once the hearing is over.

Professional life has many demands. We all know that just an afternoon away from your desk will be rewarded with an inbox which has come under sustained mortar fire. Requests, demands and enquiries big and small will await from all directions.

My practice at the end of a hearing is not immediately to re-engage with the world around me. Instead, in the solitude and calm of the post-hearing room, I like to jot down my initial thoughts. I am not attempting to write up the case or determine the outcome. But whilst everything is fresh and clear, I like to jot down key impressions, first thoughts I may have, and a list of things to do which I expect will have to be wrestled with before an award can be delivered. At that moment, the case is teeming with bits of information which I want capture and store for later on. I do not want to let them swim away.

Parties to an arbitration have paid for a premium service which includes timely delivery of the award. Aside from fulfilling the expectations of the anxious parties, there is another reason to crack on with the write up. However good the note taking has been, the tribunal’s grasp and feel for the case has a limited half-life. The longer time passes by, the more impressions fade and the more the mastery of the essence and detail of the case erodes and degrades. It is a truism that the more time that elapses the longer the award writing will take.

Within 24 hours of the end of an arbitration I will have perfected a skeleton plan of where I am going. I may not have determined the issues, but I will have sketched out what I know I need to do. This will be a combination of the statement of issues and a reflection upon my post-hearing first thoughts. I will know my direction of travel, although rarely anything like precise figures.

It is said that advocates glide like swans but kick furiously underneath. It is not dissimilar for the tribunal. The 10,000- or 15,000-word award does not just drop out of the tribunal’s mind on to the page. There is a heavy lift to be done which is most unlikely to be done in one sitting.

It is much easier for an award writer to nibble away at their task in bite size chunks. I tend to write the award broadly in narrative order. Others may write up the factual background first but then jump to deal with a particular legal point which they want to get clear on the page before they deal with the evidence and findings. They will then knit it all together at a later stage.

The document needs to be set with a heading, introduction and background. Once these preliminary steps have been committed to the page there is a document which is ready to be worked on. It is gratifying to see how quickly an award can come together if this ground is broken first.

I will work through my award plan, ticking off various tasks as I go. Once the background has been summarised, next is my impression of the parties. Bearing in mind that a court will have to approve my award, I want any future (and potentially critical) reader to get a clear impression of my thoughts on the feel and sense of the case beyond just the cold hard numbers.

There is a story to be told in an award. Good advocacy with well-chosen words and phrases should be repaid in kind. The thing must be readable.

Unless a day has been set aside for judgment writing, which is not always possible, the award will be crafted in ‘magic time’. Even if a day is set aside, it is almost always insufficient. Fresh professional demands will grind on around the tribunal, but once the draft is underway it is so much easier to slope off into the study and be lost in the quiet of the evening for a couple of hours. Ditto rising early and getting a couple of hours in before the bustle of the day. The writing of the award is an ever-present priority. It weighs heavily on the mind until the tribunal has got the better of it.

The task of the arbitral award writer is different to the private FDR tribunal. The FDR tribunal must articulate an outcome quickly. Whether delivered orally or in writing, everyone accepts that it will of necessity have an element of instinct and shorthand about its character. It is non-binding and so it will never need to go through the process of court approval or appeal. The FDR tribunal indication has an element of ‘thinking fast’ whereas the arbitral award is more closely related to ‘thinking slow’. It is anxiously considered. It must winnow and organise. It must be clear, analytical, and its conclusions (hopefully) unimpeachable, however disappointing that may be to one or both parties. It aims to be appeal proof. It is much more of a slog than the FDR indication.

It may be that a considered decision on the outcome is impossible until the key factual issues have been wrestled into submission. I can think of cases where it really was not obvious even after closing submissions whose position was going to prevail.

Making factual findings is perhaps the most alien task to a tribunal whose primary occupation is otherwise as an advocate. As an advocate (with a very few exceptions) one simply assumes instructions are true and seeks to persuade the tribunal to believe them. The arbitral tribunal must take disparate and often conflicting pieces of evidence and craft to fit a coherent whole. I have heard it described as putting together a jigsaw puzzle without having the picture on the lid. Sometimes the picture isn’t clear until the last piece is put in place.

I also like to settle my factual conclusions into a short summary of the assets in light of my factual findings. One can then look down across the plain and craft the solution. The cake is ready to be cut.

The discretionary distribution is sometimes the easier part of the tribunal’s task. But it was only possible with the heavy slog to the summit of the factual findings and then taking in the view. That said, the more modest the assets, the more difficult the discretionary exercise may be. A fine sable may be needed and not a broad(er) brush.

A good tribunal should not be in a rush. Preliminary conclusions and drafts are best slept on. I recall one of the trainers on the IFLA course saying that he always went for a walk before pressing send. Wise words.

If the essential text of the award may come together within a week or so, my suggestion is that the tribunal still leaves it alone for enough time that it can be returned to more dispassionately. It is very hard to proof-read your own text when you are in the thick of it. You need some cool detachment. If something continues to nag away as not being right, it probably isn’t and needs to be revisited.

Opinions differ on the circulation of an award in draft. I am firmly in the camp that this is helpful to all. With even the most anxious and careful consideration there may be some typographical errors or fact polishing that the advocates are able to identify. The Court of Appeal has repeatedly been clear as to the limits of requests for ‘clarifications’.

I am aware that some say that the draft award is an anathema. I respectfully disagree and find a tight timetable for any comments to be a useful collaboration with the advocates. The draft can also often usefully express an initial view on costs. A brief ‘Addendum’ dealing with issues raised in response is often a useful coda for any future reader.

The canny tribunal will want to ensure that the award is capable of swift conversion into a court order. Wherever possible, solutions should not be overly complicated in their structure. There is beauty in simplicity.

The orders to be made consequent upon the award should be plainly heralded in the award itself. A short time for agreeing a reflective order should be given. In strict legal terms the arbitral tribunal is functus officio upon delivery of the award. If the parties wish me to, and they usually do, I will remain briefly involved as the arbiter of the reflective draft court order.

I am aware of stories of disappointed parties dragging their feet with agreeing an order which is reflective of the award. In some circumstances this may be a continuing example of domestic abuse. The last lash of the tail. If one party refuses to engage, then the propounding party should promptly issue a notice to show cause with their suggested draft order.

It is often said that a decision-maker should write any decision for two audiences. First the loser needs to know why they have lost. Second, an appeal court will want to know why and how a decision has been reached, so that this process can be reviewed if needed. The arbitral tribunal will want any court to understand why they have arrived at the award that they did. The single most useful piece of advice I have been given as a tribunal is to ‘find your facts carefully’. Both the burden and standard of proof can have real significance.

The arbitral tribunal is also on show themselves, unlike a judge sitting with the benefit of security of tenure. An arbitral tribunal will need to find a way to package hard decisions. The temptation not to bite one of the two hands that feeds is to be resisted. Awards are to be delivered (to borrow a phrase) without fear or favour, affection or ill-will.