My thoughts on how mediators and arbitrators really think and act
At a recent local bar event, a young lawyer approached me to ask if he could join me at the table where I was enjoying a quick bite to eat. We introduced ourselves and shared a little bit about ourselves. The attorney is an associate at a very large and prominent international firm and practices in the corporate field. I explained that I was a former practitioner (or, as I stated it, "an old courtroom lawyer") who decided to become an arbitrator and mediator with JAMS a few years ago.
Notwithstanding the lawyer's youth and experience in areas other than litigation, he asked me two insightful questions that prompted a deep and thoughtful discussion:
- How does a mediator bring parties and their counsel together to participate in meaningful negotiations?
- How does an arbitrator keep the playing field level in arbitrations, especially given that some parties enjoy better resources (e.g., bigger law firms) than others?
Arbitrations
In essence, how does an arbitrator ensure fairness between and among the players in arbitrations?
Arbitrators like to use certain terms to describe how they are fair, such as "neutral," "impartial" and "unbiased." Indeed, these are essential concepts and certainly apply in all arbitrations. But what we do transcends words.
In every aspect of the arbitration process, including the plenary hearing, a mentality that I call "focused but equitable objectivity" commands us. What drives our thoughts, actions and decisions is that everyone deserves equal time, attention and consideration, regardless of their age, gender, race, culture or background, or the size and sophistication of their firm (or the firm that is representing them). We religiously and rigorously try to apply balance to everything and everyone.
We focus on facts (i.e., evidence) and law, not on individuals' personality traits. We put the passion of the parties and zeal of counsel into proper perspective and assess whether the players, both human and corporate, are genuine and credible. We treat individuals the same as we do companies. We treat solo practitioners the same as we do attorneys from big, powerful firms. Civility, respect and professionalism not only guide us, but they dictate how we administer the process and relate with the parties.
To me, this is how arbitrators are (or should be) wired.
Mediations
Many times, by the time a mediator gets involved in a dispute, the parties and their lawyers have laced up their gloves and approached the center of the ring to begin throwing punches. How does a mediator encourage the players to step back from each other, lower their fists, unlace their gloves and turn down the heat?
I'm not a psychologist, but my experiences as a mediator and as a practitioner (and a party!) in acrimonious disputes have taught me several important ideas to present to the parties.
Through a mediation's structure, logistics and messaging, a mediator can and should redefine the negotiation atmosphere and attitude. We strongly encourage parties to remain calm and not display anger during all communications and activities. We persuade parties to put aside their hostility toward the other side and diminish the importance of "being right." We emphasize to parties that mediations are collaborations, not competitions. There are no winners; there are no losers. There're only opportunities to negotiate final resolution and move forward.
Even when we face a complex dispute involving one large corporation against another, humans are at the center of the storm. We encourage everyone to respect each other. This doesn't mean one side must agree with the other side's positions, but having respect for its point of view is essential.
Empathy is a tool that helps us do this. Stand in the other side's shoes, even for a moment or two. Try to understand where they are coming from. There's no need to buy into it, but understanding it and feeling it, even just slightly, are critical.
Some level of trust helps in this regard as well. Trust starts with understanding the other side. Many times, meeting the individuals who are representing the interests of the other side plants the seed for this. This is why I often like to begin a mediation with a brief joint session. I suggest this not so the parties can try to make a persuasive (and usually argumentative) presentation, but simply so they can meet, put faces with names and perhaps get a sense of who the decision-makers are and what drives them.
Transparency is another means to build trust. This includes transparency by and with the mediator and among the parties. This does not mean a party must reveal confidences or show all its cards. But be truthful and helpful. And share information, data and documents material to the dispute. This can clear a path toward resolution.
Finally, intently listening, and not reacting, is essential. This should be followed by responding civilly and constructively, which is key to effective, good-faith negotiations.
My hope is that you've gleaned some insights and a bit of wisdom from a guy who's been around a while.
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