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Mediators and Arbitrators: A "Stark" Contrast
Categories: This & That
Many ADR providers offer both Mediation and Arbitration services, but are the skill sets they offer in each different? If so, how? I spoke on the topic of mediation recently to the National Academy of Arbitrators, Michigan Region whose members are some of the best and most respected arbitrators in practice. As I prepared my remarks, I started thinking about these questions in a way that had not previously occurred to me. In my view, the contrast is “Stark.”
Evidence vs. Stories
Arbitrators listen to evidence. They rule on objections and consider only evidence admitted into the record. They weigh record evidence and draw conclusions from it. They evaluate. They have pre-conceived opinions and generally make no secret of them. They filter the evidence through their pre-conceived opinions. They do or do not like last chance agreements, for example. They do or do not respect zero tolerance policies. They do or do not believe discharge should be used only as a last resort. Arbitrators know how to make decisions, and they make decisions every day. They explain their decisions in reasoned awards, which they “publish” to the parties.
Mediators, by contrast, listen to stories not evidence. “Evidence” matters only to the degree there is risk that evidence will or will not be discovered, will or will not be admitted, will or will not be persuasive to a finder of fact. Mediators have pre-conceived opinions, too, but their opinions are used to ask pointed questions about risk. Mediators generally keep their opinions to themselves. Mediators may or may not be asked to evaluate the claims and defenses of the parties, but doing so threatens loss of credibility and trust. If Mediators have reached conclusions about the likely outcome of the case – how they might rule if they were the decision maker – they are kept under wraps to avoid complaints of bias, loss of neutrality and favoritism.
Boundaries
The Collective Bargaining Agreement, executive contract or agreement to arbitrate generally governs the authority of an arbitrator. Arbitrators cannot go outside the four corners of that agreement. They are often bound by legal precedent and rules of evidence. Only in special cases, such as contract interpretation, do arbitrators consider how the outcome will impact the relationship of the parties.
There are few limits on the boundaries of a mediation process. The parties can agree to design whatever process they believe best fits the dispute. Mediation considers monetary issues, of course, but may or may not pay attention to legal precedent. The law is generally viewed as simply one more risk factor to consider. Mediation may take into consideration issues of public policy and broader social issues. Mediators frequently consider the relationship of the parties, both personal and business. If the parties have an ongoing relationship, the mediation process may help to re-establish or create new channels of communication. When was the last time an arbitrator considered that concept? A crumbling or tattered relationship between the disputants may be a crucial issue and mediation is an excellent vehicle to begin the process of relationship repair. Significantly, mediators come to grips with party emotions! If emotions are driving the dispute, a mediator ignores them at his peril.
Relief Available
Arbitrators are confined to relief within a narrow framework: back pay, reinstatement, severance, contract interpretation, damages, attorney fees, etc., the kinds of relief available to a judge.
Mediators can resolve all issues between the parties, including those anticipated to arise in the future.
Win/Loss vs. WIN/WIN
Arbitration is about who wins and who loses.
Mediation – especially interest based mediation – can result in WIN/WIN resolution. When I started in practice, we liked to quote Sir Winston Churchill for the proposition that the best settlements were those from which both sides walk away equally unhappy. Since Fisher and Ury published “Getting to Yes,” we’ve learned to resolve disputes by focusing on the underlying needs and interests of the parties, something the parties are often unable to do for themselves without the help of a third party neutral mediator.
Communication
Arbitrators, like judges, do not and cannot engage in ex parte communication with a party or lawyer. The arbitration proceeds in joint session with all parties present, observing each other, hearing each other and their witnesses testify on direct and cross examination and listening to the arbitrator rule on objections. The parties are not permitted to tell their stories; they are permitted only to answer questions. Direct communication is forbidden. All comments are directed to and through the arbitrator.
In mediation, confidential “eyes only” and “ears only” communication is an essential element of the process. Mediation process design may include joint sessions, private sessions where the parties are together solely to hear the mediator’s opening statement, or some combination of both. In a mediation designed with private caucuses and shuttle diplomacy most, if not all, communication is ex parte. Where the process includes joint sessions, parties are encouraged to address one another. On occasion, the mediator might bring the principals of each party together separately to hammer out a final agreement face-to-face.
Conclusion
Mediation and arbitration are two distinctly different processes. The skills necessary for a mediator to be successful are often very different from the skills necessary for an arbitrator to be successful. Yes, there is overlap, but at the end of the day, the skill sets are almost mirror opposites. While the distinction between skills sets is “stark,” good ADR providers are able to successfully distinguish between them and offer both services effectively to their clients. Keeping straight which works best in which category will assist in assuring a quality process no matter which conflict resolution approach the parties select.