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Mediators As Arbitrators?

August 1, 2013

There is good reason our American judicial system demands full-time, fully paid, professional judges, grants them total immunity, and gives them a life-time position or selects them from those with the clear intent to make their judicial job their life-time career.  They must make all of their decisions based upon only the fact and law presented, not personal bias or interest, past or future.

Thus, in short, if done well, our system’s primary decision-maker’s job is hard work and totally thankless for the most part.  And, because 50% of the applicants for any judge’s final decision for every dispute must lose, no judge or justice can ever hope to win any popularity contest!  (Judges polls and awards merely “compare” the already extremely limited field.)

An arbitrator’s job is much the same;  the parties request the arbitrator (or a panel of them) for a decision for a dispute, where only one side can prevail.  But the similarity between a sitting judge and a part-time arbitrator stops there.

After the judicial dispute is “decided”, a judge still has their full-time job.  And, like it or not, both sides will likely face that same judge again.  However, after the arbitration decision, the arbitrator must return to work in the American-law market-place!  And, half (a least) of those who asked for their arbitrator’s decision will not be pleased with his/her decision and many will thus never “hire” them again, in any capacity.

One increasing present and future problem thus to be considered for trial lawyers (and all lawyers who may be asked to serve as arbitrators) is that Arbitration is increasingly becoming the dispute resolution process of choice with many entities seeking to avoid the jury trial.  And, thus, many more, usually lawyers, will be called upon in the future to serve as either a sole-Arbitrator-decider or one of a panel of (usually) three Arbitrator-deciders.

And, even more attorneys using the arbitration process for their dispute, thus, will need to consider what characteristics they think they want in their decision-makers of this type.

There are hundreds, if not thousands, of articles about what constitutes the ideal Arbitrator.  Smart,  neutral and without conflict of interest, conscientious, hard-working, unbiased, contemplative, fair, decisive, etc.  But, in reviewing those articles, likely the most important characteristic of those most often sought is one who on YOUR case will be a “true neutral”.   Particularly, if you are using a one-arbitrator system who solely makes your decision, or when seeking the “Third” arbitrator for the usual three-arbitrator panel.  (The other two, on a three person panel should generally also be neutral, but their degree of neutrality for this role, for practical reasons, is usually lessor for practical reasons too numerous for this article.)

As mediators are generically labeled  “professional neutrals”, then, why not look to the increasing pool of mediators as a source for your “true” neutral?

After all, most mediators, including me, actively offer ourselves to be selected as Arbitrators, as one more of the available and offered forms of ADR, or alternative dispute resolution, intended to avoid the rigors of jury or bench trial.  (And, by the way, it is, in many situations, a very valid alternative to consider and/or use.)

Many mediators may, indeed, make good arbitrators.  Particularly if they practice ADR full-time and have the time to offer.  And, particularly if you are seeking the administrative skills, for example, that either one of the two “side-chosen” arbitrators of any three-person panel must have to achieve a panel and obtain a timely arbitration hearing date.  (One critical duty, to “select the ‘Third’ Arbitrator who likely will be the real decision-maker in any panel hearing, for example, often requires much more time than attendance and duties of the hearing itself.)

But, a word or two of caution to turning, mindlessly, to this readily available source for any ultimate arbitrator-decider of YOUR case.

First and foremost, Mediation and Arbitration are totally different processes.  One mediator who may excel at mediation skills and actively assisting the parties to resolve their own dispute, may simply not have the totally different (and also difficult) characteristics and skills necessary to neutrally contemplate and then decide a dispute, one side against the other, in an arbitration setting.

And, the same extensive and specialized legal background that gave your mediator so much insight on helping parties come to a resolution of their choice, may become a distinct impediment to impartiality for the same person serving as a decision-making arbitrator.

Second, the unspoken side of mediation practice is that while working to obtain a voluntary resolution by the parties, most mediators are also seeking to re-hired!  Most are not independently wealthy and thus in need of continuing work.  Hopefully, from both sides of every mediation effort.

And, even if “your” mediator does not appear to be aggressively marketing, you can bet his/her boss is.  Like any law practice, if you have no clients, you can never be a great mediator!

Keeping both sides happy is comparatively simple where you are truly seeking to help both sides, equally, find a common ground that they can elect to settle.   It is quite different when, as an arbitrator, you know, in advance that 50% of the parties are not going to like your “decision against them”!

Third, serving as an arbitrator can be quite time-consuming, and thus expensive when compared to mediation.  Many attorneys forget that the hearing time is probably the least of the time actually required during the arbitration process.  By-passing a free judge and court system for the not-free admin time of several arbitrators can be a shock to those who are used to having to pay nothing for their decisions other than filing fees.  Many alternative sources of arbitrators will serve as a professional courtesy or to pay back a favor.  Most professional mediators, losing mediation time, will expect to be paid and fully, for their time consumed.

Again, it is foreseeably always unpopular sending a bill to a party who has “lost” an arbitration; and sometimes, for sending a bigger than expected bill to someone who won!

(Are you starting to understand why most mediators, if they will really consider serving as arbitrators at all, may restrict their participation to “out-of-town” matters?)

But of these three concerns, the one I would be concerned about the most is the issue of really true neutrality in the face of the “required” marketing of any mediator.

All mediators have a history before they became a mediator.  It would be certainly prudent, depending upon the role of the arbitrator you seek, to look carefully at that history, prior to their ADR practice, as you would a senior or retired judge or any other potential lawyer-candidate for the position of your decision-maker.  Like juror selection, the more you know about a prospect, the better to evaluate your case’s chances with them.

But, it would be even more prudent to consider to what future market any given mediator might be “working”, consciously or unconsciously, while serving as an arbitrator.  And, you might be wrong about your immediate assumptions on this subject.  The issue is not that obvious.  Or, what any mediator-arbitrator may be seeking, AFTER the arbitration’s decision.

I know this will not be a popular subject with many mediators who actively also seek to be arbitrators.  And, I welcome other input and counter-opinions.  But, as arbitrations are increasing, with the limited number of senior, retired judges willing to serve in the critical role of decision-making arbitrators (those “known commodities”, not also mediating, are my usual personal recommendations) and the huge logistical problem with obtaining arbitrator service from truly neutral practicing attorneys, it will be natural for the Bar to turn to those who hold themselves out as “professional neutrals”, the majority being Mediators.

As such, it seems, at least a word of caution is in order for those of you who will be seeking mediators as arbitrators in the future.

Dan from Houlton, Maine (on vacation).

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