People in dispute in their employment – such as an allegation of bullying or sexual harassment at work – may prefer to avoid litigation, arbitration, or mediation, and appoint an investigator to investigate in private.  This is becoming more common. 

This alternative process can have the attraction of confidentiality, and that may not be acceptable to the respondent if the allegation has become public.

Here are some observations.  They come from someone who has spent a life in the adversarial process, which has a history of more than 800 years.

1. We speak of an investigation not a hearing.
2. The parties therefore do not meet for this purpose.
3. The respondent gives up the right of confrontation and cross-examination – a right at common law, here, and a constitutional right in the U S.
4. The right to silence may also be lost or impaired.  (The fact that this process has advantages does not detract from its disadvantages.)
5. We have gone from the adversarial to the inquisitorial mode.
6. That is not what lawyers are trained for or do in ordinary practice.
7. And the investigator can draw conclusions or express a preference for one version over another.
8. And report to the person commissioning the investigation.
9. The investigator can only do what the parties agree to give him power to do.
10. And according to the rules they agree on.
11. This falls to be determined by the general law – there is no statute dealing with this process like that which underlies arbitration.
12. For the contract to be binding in law, it would have to show consideration, or be executed as a deed.
13. No one should enter into such an agreement – and thereby, on at least one side, waiving rights – without the benefit of considered independent legal advice.
14. Any such contract would be subject to the requirements of the general law – for example as being unconscionable, or the subject of undue influence.