I just completed a survey for a colleague who is writing a paper on the growing use of mediation- arbitration.
For people with difficult, deeply-rooted disputes, this can be a very useful process. It offers them the opportunity to resolve the matter — hopefully quickly, confidentially and effectively–with someone in whom they have great confidence.
A good mediator-arbitrator is a trained, skilled and experienced professional, usually but not always a lawyer. In family law cases, we will meet first with each party separately to screen them and their case, to try to ensure that they and the subject of the dispute are good candidates for this special dispute resolution process.
We will then work hard with them to try to resolve the dispute in mediation. We will encourage them both to try to craft a solution that will likely be better for them both than the alternative, which is an arbitrated decision that neither may like. The parties will often attend this part of the process without their lawyers. The mediation will focus on what each of them needs to reach an agreement that is “good enough” for a settlement. The mediation is generally not a legally evaluative process; rather it is a focused exercise in intense problem-solving. Most people find that they are able to reach creative and satisfactory settlements.
If the mediation does not result in a settlement, the process will then change into a decision-making process. The mediator and the parties and (usually) their lawyers will meet at another time, and the case will be presented to the arbitrator much in the same way as a case in court. Each person will give his or her evidence and each lawyer will make his or her arguments, and the arbitrator will issue a written decision.
Mediation-arbitration is not for all cases. It requires the parties to have a great faith and trust in the integrity and competence of the mediator-arbitrator. The role of mediator-arbitrator can be a challenging one and the professional must remain neutral, impartial, professional and committed to a fair process at all times. But the process also allows for considerable creativity because it is a privately negotiated and provided process. There are certain requirements for the training of the arbitrator and the form of the arbitration agreement, but there is great latitude in how the arbitration process is structured, making it a flexible dispute resolution option for many.
