Mediation & Arbitration
The Three Principles of Neutrality
First and foremost, my task is to listen to the party and their counsel. Everyone involved in litigation has made an important decision to pursue their rights on a given issue. Getting into litigation is a serious decision that should be based on rational thought. The process is not kind and once someone makes the decision to enter into the fray, whatever their motivation, it’s important to gain an understanding of where they are coming from, and why. Without an understanding of both the legal and personal issues that are important to the party, a fair resolution is difficult to achieve.
Second, I want to be able to help them evaluate the strengths and weaknesses that I perceive with their position, always taking into account their perspective on the issues they are dealing with. Parties are vested in their perceptions and understandably so. Their advocates are giving them reasoned advice, but a secondary look from someone with no stake in the outcome, if fairly reasoned and well-presented cannot be underestimated in terms of importance to a final resolution.
Lastly, being a neutral gives me a chance to work with the party and their adversary to help them find common ground so that an amicable resolution of their dispute can be reached. Not all situations lend themselves to resolution. That is ok. But in most instances, common ground is already there and helping the parties see it can be the best path to the resolution of the dispute. Fair resolutions are always in the best interest of all.
In the 30 years I was an attorney I litigated many complex construction oriented matters. Often the stakes were high with damages in the millions to tens of millions of dollars.
I also assisted clients with matters that arose from motor vehicle accidents, real estate disputes, mechanic’s liens, business disputes, securities transactions and many other types of issues that were important to my clients. I tried cases in federal and state courts and before arbitrators, through the American Arbitration Association, of which I am a proud member of the construction panel, and privately.
The cases I tried sometimes only took a few days, but in others the trial or hearing lasted weeks—through this, I gained an understanding of what is important to the advocate. Foremost among the things that I consider important are that the trier of fact works for the advocates and their clients. Not the other way around. Secondly, the trier of fact has to bring the unbiased perspective to the issue with a willingness to rule based on reason and the rule of law, not emotion. Dispassionate reasoning, coupled with an educated sense of the rules governing the dispute, applied fairly and without bias. This is my view of the role of the arbiter. It is always my goal when serving.
How It Works
From the outset of the process all I can know about your case is what you tell me. In both the written materials I receive and through direct conversations with you both prior to the mediation, during the mediation and often times in post session discussions. The process involves you educating me as much as possible about the facts and circumstances of your case, the different perspectives of the parties and the goal for how best to resolve the dispute. Good advocates understand the importance of the pros and the cons of their cases. To the extent that I get an understanding of the pros and cons, it can only help. Through this exchange of information, you put me in the best place to help you.
You will have spent a great deal of time strategizing with your client(s) on the best way to present their case. Often times you will have spent a lot of time working your file, through the process of factual discovery and in consultation with experts. Many cases are about maximizing a recovery of economic interests, but not all. Some are about continuing or mending a relationship. Regardless, to the extent that you can let me know what your strategy is, the better I am able to find my place in helping you implement it.
Once we get to the mediation session, I am a firm believer in listening to the parties and their advocates discuss the facts and circumstance and legal realities of their case. That process often continues throughout the session and even beyond in certain instances. However, the process has to be a mix of an information exchange and movement towards resolution. In cases where economics are the driving force, its important for the party making the claim to have exchanged an opening demand, with justification therefor, to the those whom it seeks a response. If that first move doesn’t happen until the session begins, the process lags. Obviously, the process shouldn’t be rushed, but it also shouldn’t be stalled by lack of action.